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2010 FLORIDA LEGAL ETHICS REVIEW By: Timothy P. Chinaris Thomas Goode Jones School of Law Faulkner University, Montgomery, Alabama Member and Past Chair, Florida Bar Professional Ethics Committee Copyright 2010
Lawyers are busier than ever before. Many things compete for their time and attention. Throughout it all, lawyers must remain on top of developments in their particular fields of practice – and must keep abreast of changes in legal ethics, which affect all lawyers. These materials are designed to help lawyers learn about significant developments in legal ethics that may affect them. The following summaries of rule changes, cases, and ethics opinions reflect developments that occurred during 2010. The summaries are arranged by subject. For continuing updates on Florida legal and judicial ethics developments, please visit the “sunEthics” website (www.sunEthics.com). Subjects addressed in this Review are:
References to rules are to the Florida Rules of Professional Conduct unless otherwise noted. References to Florida Statutes are abbreviated as “F.S.”
RULE CHANGES (AND PROPOSED CHANGES) Florida Supreme Court dramatically changes rules governing lawyers' websites, but stays implementation. In re: Amendments to the Rules Regulating The Florida Bar – Rule 4-7.6, Computer Accessed Communications), 24 So.3d 172 (Fla. 2009) (revised opinion). On rehearing, the Florida Supreme Court amended rules governing lawyer and law firm websites. Websites previously were considered "information upon request" and as such were exempt from the lawyer advertising rules. Rule 4-7.6 was changed to make lawyer websites subject to all of the substantive lawyer advertising rules, with one exception: websites need not be filed with the Bar for review. The Court explained: "[T]he purpose of rule 4-7.6 is to protect consumers from misleading information, provide consumers with accurate and helpful information in the selection of a lawyer, and respect lawyers’ abilities to provide information about themselves to the public. In light of this purpose, the Court intends that websites be subject to all of the substantive advertising regulations applicable to other advertising media (except the filing requirement)." (Footnote omitted.) The Bar then announced a new policy: Bar staff will decline to review websites, even if filed under Rule 4-7.7, although they will answer specific questions involving a particular phrase or image Lawyer and law firm websites may no longer include references to past results or successes, testimonials, or statements characterizing the quality of the lawyer's services. See Rule 4-7.2. Websites still must list "all jurisdictions in which the lawyer or members of the law firm are licensed to practice law." The rule does not state where on the website this disclosure must appear. The Court also amended portions of Rule 4-7.6 concerning Internet ads and direct email communications to prospective clients. The amended rule clarifies "that email communications are subject to the rules that regulate advertisements by traditional mail." Among other things, email communications must: (1) include a statement of the advertising lawyers' "background, training and experience;" (2) inform the recipient if a lawyer other than the advertising lawyer will actually handle the matter; and (3) begin the subject line with the words "LEGAL ADVERTISEMENT." Regarding Internet ads, the amended rule specifies that "[a]ll unsolicited computer-accessed communications concerning a lawyer's or law firm's services not addressed by other provisions of [Rule 4-7.6] are subject to the requirements of rule 4-7.2" (the general advertising rule). In a subsequent order the Court made the effective date of the revisions July 1, 2010, although it later stayed implementation until the Court rules on yet another web-related rule change proposal filed by the Bar. The proposal would spell out procedures that, if followed, would permit a viewer to turn all or part of a website into information “requested” by viewer. The "requested" information then would be exempt from the advertising rules, thus allowing inclusion of items such as testimonials, statements characterizing the quality of services, and listings of past results. The Bar subsequently filed a motion to dismiss the proceedings, which the Court has not ruled on.
Florida Supreme Court amends rules regarding lawyer-to-lawyer and lawyer-to-client communications. In re: Amendments to Rule Regulating The Florida Bar 4-7.1 – Lawyer-to-Lawyer and Lawyer-to-Client Communications, 41 So.3d 176 (Fla. 2010). Ruling on a request from the Florida Bar, the Florida Supreme Court adopted rules expressly exempting lawyer-to-lawyer and lawyer-to-client communications from the advertising rules. These communications remain subject to other Rules of Professional Conduct, including conflict rules and the rule against conduct involving dishonesty, fraud, deceit, or misrepresentation. The Court sua sponte added language to the rule on communications with current or former clients in order to emphasize that the rule may not be used to circumvent other advertising regulations. This language also specifies that "former clients" of a lawyer do not include a public entity's clients or former clients. Amended Rule 4-7.1(g) provides: "Subchapter 4-7 shall not apply to communications between a lawyer and that lawyer’s own current and former clients. However, a lawyer shall not provide advertising materials to the lawyer’s own current or former clients that the lawyer received from other attorneys – a lawyer shall not serve as a conduit for other attorneys’ advertising. Further, as used in this rule, the term 'former clients' does not include the clients or former clients of a public entity." The Court cautioned: "[L]awyers are prohibited from using these two exceptions to evade the requirements of the advertising rules." Finally, the Court ordered the Florida Bar to "undertake a comprehensive and contemporary study of marketing," noting that "it has become apparent that there are differences between advertising and marketing." The new rules were effective October 1, 2010.
Florida Supreme Court adopts Rule of Civil Procedure addressing inadvertent disclosure of privileged materials. In re: Amendments to the Florida Rules of Civil Procedure, __ So.3d ___, 35 Fla.L.Weekly S494 (Fla., No. SC10-148, 9/9/2010). The Florida Supreme Court adopted a new rule specifically addressing inadvertent disclosure of privileged materials. New Fla.R.Civ.P. 1.285 authorizes a party who has inadvertently disclosed privileged materials to "thereafter assert any privilege recognized by law as to those materials." The assertion must be made within 10 days of discovering the inadvertent disclosure. The rule sets the procedure for making the assertion of privilege, the duties of the party receiving notice of the allegedly advertent disclosure, the recipient's right to challenge assertion of the privilege, and the content and effect of a court's order on the issue. The Court, however, declined to adopt a provision listing factors for a court to consider in resolving a dispute over whether the materials are privileged, because the rejected language "may address an issue of substantive law that is not appropriately addressed in a rule of procedure." The Court "express[ed] no opinion" on the substance of this part of the committee's proposal. The new rule is effective on January 1, 2011.
Florida Supreme Court amends rules governing mediator advertising and marketing practices. In re: Amendments to the Florida Rules for Certified and Court-Appointed Mediators, 32 So.3d 611 (Fla. 2010). The Florida Supreme Court amended the rules governing mediator advertising and marketing practices. Amended subdivision (b) prohibits a mediator from engaging in marketing practices that identify the mediator as 'Supreme Court Certified,' unless such practice also identifies one or more specific areas in which the mediator is certified. Subdivision (c) prohibits mediators from engaging in marketing practices that advertise the mediator as 'certified,' unless the mediator obtained such certification through successful completion of an established certification process and the advertisement clearly identifies the entity issuing the certification. Under subdivision (d) marketing materials are deemed 'misleading' if the mediator states or implies that prior adjudicative experience makes one a better or more-qualified mediator. Subdivision (e) states that mediators are prohibited from engaging in marketing practices that promise clients specific results or outcomes. Finally, subdivision (f) bars mediators from engaging in any other marketing practice that 'diminishes the importance of a party’s right to self-determination or the impartiality of the mediator, or that demeans the dignity of the mediation process or the judicial system'." The Commentary to the rule explains that a
former judge may not use the prestige of judicial office to advance his or her
interests as a mediator. The mediator may not appear in an ad wearing judicial
robes or use the title “judge” without modifiers in an ad. "Indeed, the use of
the title judge in any marketing practice, including, but not limited to,
letterhead and business cards, is inappropriate. However, an accurate
representation of the mediator’s judicial experience in references to background
and experience in bios and resumés would not be inappropriate." Florida Supreme Court amends Basic Skills requirement to allow online course attendance, except for practicing with professionalism component. In re: Amendments to the Rules Regulating The Florida Bar – Rules 6-12.3 and 6-12.4 (Basic Skills Course Requirements), 29 So.3d 288 (Fla. 2010). The Florida Supreme Court granted the Florida Bar's request to allow new Bar members to complete the 3-course basic skills requirement by attending in-person, electronically, or on-line. The amendments "do not change the requirement of in-person attendance for the Practicing with Professionalism course." The amendments were effective March 6, 2010.
Florida Supreme Court amends offer of judgment rule as it applies in vicarious liability situations. In re: Amendments to the Florida Rules of Civil Procedure, __ So.3d ___, 35 Fla.L.Weekly S494 (Fla., No. SC10-148, 9/9/2010), 2010 WL 3488983. See discussion in “Fees” section.
Florida Supreme Court amends Rules of Juvenile Procedure to require counsels' presence at juvenile detention hearings. In re: Amendments to Florida Rule of Juvenile Procedure 8.010, __ So.3d ___, 35 Fla.L.Weekly S663 (Fla., No. SC10-252, 11/10/2010), 2010 WL 4483526. The Florida Supreme Court amended Rule of Juvenile Procedure 8.010 to require the state attorney and the public defender (or their assistants) to attend juvenile detention hearings in person.
Amendments to Fed.R.Civ.P. 26 extend work product protection for expert witness reports and communications. Amendments to Fed.R.Civ.P. 26 that took effect on December 1, 2010, expand work product protection available regarding expert witnesses. Under the rule, work product protection extends to drafts of expert reports as well as communications (written or oral) between lawyers and experts.
Florida Bar files biannual package of rule change proposals with Supreme Court. On October 15, 2010, the Florida Bar filed its regular rule change package with the Florida Supreme Court. The Bar bifurcated its filing into 2 petitions, one with the more substantive changes and the other with the "housekeeping" changes. Some of the Bar's significant proposals are summarized below. Attorney's fees and subrogation/lien resolution (Rule 1.5). Proposed new Rule 4-1.5(f)(4)(E) would require a lawyer to include in the fee contract "an explanation of the scope of any subrogation or lien resolution services the lawyer will undertake at the conclusion of the primary matter." The lawyer ordinarily must ascertain the existence of liens and subrogation claims, inform the client of them, and make reasonable efforts to negotiate liens to the client's benefit. When "extraordinary subrogation or lien resolution services" are required, with the client's "informed written consent" the lawyer may refer the client to someone outside the lawyer's law firm for these services. The person or entity performing those "extraordinary" services may charge the client a separate fee, but if charged by a lawyer that fee must comply with applicable provisions of Rule 1.5 and the original lawyer may not share in that fee. The Comment to the proposed new rule cautions lawyers not to refer lien or subrogation matters to "a nonlawyer or someone not authorized to provide the services," but gives no guidance regarding whether anyone other than a lawyer or law firm is legally authorized to provide such services. Attorney's services and fees in wrongful death matters requiring probate or guardianship filings (Comment to Rule 1.5). The proposed new Comment to Rule 1.5 would state that a lawyer handling a wrongful death matter in which an estate must be opened or a guardianship established may charge an additional fee for those services. "The probate and guardianship matters are separate legal matters in which a separate reasonable fee may be charged" and they are "not considered part of the personal injury or wrongful death matter for which the lawyer is subject to the contingent fee schedule." Similarly, "ancillary services such as estate planning, bankruptcy, financial planning, public benefit planning, tax planning, real estate transactions, and medicare set-asides are not considered part of the personal injury or wrongful death matter for which the lawyer is subject to the contingent fee schedule." Minimum trust account records (Rule 5-1.2(b)). This proposed amendment would require that the client’s name or case number appear in the memo area of a trust account check and would list the information that must be kept regarding electronic funds transfers. Signing trust account checks (Rule 5-1.2(d)). Proposed new Rule 5-1.2(d) would require that all trust accounts be signed by a lawyer. This would eliminate the practice, approved in Florida Ethics Opinion 64-40 (Reconsideration), of having a trusted non-lawyer act an as a trust account signatory. The proposed new rule also would prohibit lawyers from signing trust account checks in blank and from signing with a signature stamp (or similar means). Electronic wire transfers from trust accounts (Rule 5-1.2(e)). The proposed new provision would limit electronic wire transfers from a lawyer's trust account to: "(1) money required to be paid to a client or third party on behalf of a client; (2) expenses properly incurred on behalf of a client, such as filing fees or payment to third parties for services rendered in connection with the representation; (3) money transferred to the lawyer for fees which are earned in connection with the representation and which are not in dispute; or (4) money transferred from one trust account to another trust account." Pro hac vice appearances in Florida state courts by non-Florida lawyers (Comment to Rule 1-3.10). The proposed new Comment to Rule 1-3.10 gives guidance about "what constitutes an 'appearance' under this rule and how to calculate the number of appearances in any 365-day period," and offers examples of calculations using specific dates of pro hac vice admission. The Comment points out that the pro hac vice limits are ""not applicable to appearances in federal courts sitting in Florida, as appearances before each of those courts are regulated by the rules applicable to those courts" and that "an appearance in a federal court sitting in Florida does not constitute an ‘appearance’ as contemplated by" Rule 1-3.10. Temporary practice in Florida by out-of-state lawyers following a major disaster (Rule 1-3.12 and Rule 4-5.5(c)). Proposed new Rule 1-3.12 addresses authorizes pro bono practice in Florida by out-of-state lawyers after a major disaster in Florida (as determined by the Florida Supreme Court). It also authorizes out-of-state lawyers to temporarily practice in Florida following a major disaster in their home jurisdiction. The proposed rule sets out the conditions that apply, including filing a registration statement with the Florida Bar and notifying clients. The proposed amendment to Rule 4-5.5(c) would provide that temporary practice under Rule 1-3.12 does not constitute the unlicensed practice of law in Florida. Reporting misconduct of other lawyers and judges (Rule 4-8.3). The proposed amendment to Rule 4-8.3 would add an exception to the duty to report misconduct of other lawyers and judges when a lawyer gains the information "while serving as a mediator or mediation participant if the information is privileged or confidential under applicable law." The proposed addition to the Comment explains: "Generally, Florida statutes provide that information gained through a ‘mediation communication’ is privileged and confidential, including information which discloses professional misconduct occurring outside the mediation. However, professional misconduct occurring during the mediation is not privileged or confidential under Florida statutes." Lawyers acting as court-appointed mediators (Comment to Rule 4-1.12; Comment to Rule 4-2.4). The proposed amendment to the Comments to Rule 4-1.12 and Rule 4-2.4 would specify that Florida Bar members who act as certified "or court-appointed" mediators are governed by "the applicable law and rules relating to certified or court-appointed mediators." The current provisions refer only to certified mediators.
CASES AND ETHICS OPINIONS (BY SUBJECT) ADVERTISING Florida Supreme Court disciplines lawyer for using firm name containing term "expert." Florida Bar v. Doane, 43 So.3d 640 (Fla. 2010). See discussion in “Disciplinary Proceedings” section.
Florida Supreme Court amends rules governing mediator advertising and marketing practices. In re: Amendments to the Florida Rules for Certified and Court-Appointed Mediators, 32 So.3d 611 (Fla. 2010). See discussion in “Rule Changes” section.
Eleventh Circuit reverses summary judgment and allows challenges to some Florida lawyer advertising rules to go forward. Harrell v. The Florida Bar, 608 F.3d 1241 (11th Cir. 2010). Jacksonville lawyer William Harrell, his law firm, and a non-profit public interest organization sued the Florida Bar in U.S. District Court for the Middle District of Florida. The suit challenged certain lawyer advertising rules and sought declaratory and injunctive relief on the grounds that the rules violated the First and Fourteenth Amendments to the U.S. Constitution. The court granted the Bar's motion for summary judgment. Plaintiffs appealed. The Eleventh Circuit affirmed in part, reversed in part, and remanded. The court summarized its ruling: "[W]e conclude that Harrell’s facial vagueness challenge is justiciable with respect to five of the nine challenged rules. [Rule 4-7.2(c)(1)(G) (prohibits statements promising results); Rule 4-7.2(c)(2) (prohibits statements describing or characterizing quality of lawyer's services); Rule 4-7.2(c)(3) (prohibits visual or verbal descriptions, depictions, illustrations, or portrayals that are deceptive, misleading, manipulative, or likely to confuse); Rule 4-7.5(b)(1)(A) (prohibits TV and radio ads containing features that are deceptive, misleading, manipulative, or likely to confuse); and Comment to Rule 4-7.1 (ads should provide only useful, factual information presented in nonsensational manner).] As to all but one of the nine rules, however, we agree with the district court that Harrell’s as-applied First Amendment challenge is not ripe, and therefore is nonjusticiable. [As-applied challenge is ripe for Rule 4-7.5(b)(1)(C) (prohibits TV and radio ads containing background sound other than instrumental music).] Turning to the question of Harrell’s slogan, we agree with Harrell that his challenge to the Bar’s rejection of 'Don’t settle for less than you deserve' is not moot. Finally, we conclude on the merits that the Florida Bar’s twenty-day prefiling rule is constitutional."
Florida lawyer’s federal suit challenging Bar advertising rules on testimonials, past results, and statements of quality is settled. Rothman v. Florida Bar (S.D.Fla., No. 09-80503-Civ-RYSKAMP/VITUNAC, filed 3/31/2009). A Florida lawyer filed suit in U.S. District Court for the Southern District of Florida seeking an injunction declaring some of Florida's advertising rules unconstitutional. The suit arose from the lawyer's request to have clients post reviews of his services on a directory website, Avvo. The Bar indicated that this proposed conduct would violate the advertising rules. The lawyer sought to have declared unconstitutional Rule 4-7.2(c)(1)(F) (ads may not refer to past successes or results obtained), Rule 4-7.2(c)(1)(J) (ads may not contain testimonials), and Rule 4-7.2(c)(2) (ads may not describe or characterize quality of lawyer’s services). The Bar and the lawyer stipulated to a voluntary dismissal providing that the Bar would not apply the advertising rules to online directory profiles if the information is available to persons seeking information about a particular lawyer; the information cannot be available to someone conducting a general, non-specific search. (Note: The stipulation was reached before the Florida Supreme Court’s decision applying the advertising rules to all lawyer websites.)
First DCA finds law limiting public adjusters' solicitation practices unconstitutional restriction on commercial speech. Kortum v. Sink, __ So.3d ___ (Fla. 1st DCA, No. 1D10-2459, 12/29/2010). A public adjuster (“Adjuster”) challenged F.S. 626.854(6) (2008), banning solicitation by public adjusters for 48 hours after a loss-causing event, as an unconstitutional restriction on commercial speech. The trial court found the statute constitutional. The First DCA disagreed: "We hold that the statute unambiguously bans all solicitation for 48 hours and that this restriction on commercial speech violates Article I, § 4 of the Florida Constitution under the standards of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980)." The 4-part Central Hudson test for determining whether a law limiting commercial speech is constitutional can be summarized as: (1) the speech concerns a lawful activity; (2) the government shows a substantial interest underlying the restriction; (3) the restriction directly advances that substantial governmental interest; and (4) the restriction is no more extensive than necessary to serve the governmental interest. The first 2 prongs were not in dispute. As for the third prong, the appeals court determined that the state met its burden. While mere speculation does not suffice, "[w]e reject [Public Adjuster]'s argument that the Department was required to introduce evidence of actual harm. Instead, the government need only show 'that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.' . . . While many cases rely upon empirical data to support this prong, introduction of empirical data is not always necessary as a common sense conclusion will sometimes suffice." (Citations omitted.) The state supported its claims that the law ensures more ethical behavior by public adjusters and ensures privacy for people who have just suffered a calamity with "a legislative study, statistical data and anecdotal evidence." The court, however, concluded that the restriction failed to satisfy the 4th prong of the Central Hudson test. The law applied to all types of public adjuster-initiated contact. "Because section 626.854(6) unambiguously contains a ban on all solicitation for 48 hours, the Department has failed to prove that the statute is narrowly tailored to meet the State’s objectives." The court discussed and reject the contention that the rationale of Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 449 (1978) would save the statute. Public adjusters "do not have the advocacy training and persuasive skills of attorneys."
ATTORNEY-CLIENT RELATIONSHIP Law firm's representation of an LLC did not create attorney-client relationship with a principal for purposes of disqualification. PMG Collins, LLC v. R and G Enterprises, LLC, 30 So.3d 605 (Fla. 3d DCA 2010). See discussion in “Conflicts of Interest” section.
First DCA clarifies that Department of Revenue lawyers represent the Department, not the parent, in child support actions. Florida Dept. of Revenue v. Collingwood, 43 So.3d 952 (Fla. 1st DCA 2010). Father was to make child support payments to the Department of Revenue because his former wife ("Mother") was getting public assistance. In 2007 the Department, through its lawyers, filed a contempt proceeding against Father. The action was dismissed at Mother's request. In 2008 the Department petitioned to reduce Father's future support obligations due to a reduction in his income. Mother "asked the court to prohibit the department from representing the father, based upon a conflict of interest, because the department had previously filed the action against the father on her behalf." The court granted the motion and barred the Department from representing Father, finding that he "was in arrears in paying child support and it would be inequitable to allow the department to represent him against the mother, and that the department’s efforts should be directed at enforcement of the existing support order. The court directed the father to retain private counsel or proceed pro se." The First DCA quashed the order. "The [trial] court may have concluded that the department’s action seeking downward modification was inequitable because the previous action seeking child support for the mother from the father created a conflict of interest. According to state statutes and rules, however, the department’s counsel represents the department and does not represent either parent, so there is no conflict." The court noted that its conclusion was consistent with other states: "In other jurisdictions where this issue was raised, the courts have concluded that there is no conflict of interest, because the attorney represents the agency rather than the parent and thus can take a position that benefits one parent in one action involving child support and a position that benefits the other parent in a later action." (Citations omitted.)
COMMUNICATION Florida Bar approves opinion addressing when lawyers may communicate with employees of state agency without consent of agency's counsel. Florida Ethics Opinion 09-1. The Florida Bar Board of Governors approved an advisory opinion about a lawyer's communication with employees of a state agency without the consent of the agency's legal counsel. Florida Ethics Opinion 09-1 applies Rule 4-4.2 to a situation in which a law firm representing 4 clients in judicial or administrative proceedings involving a state regulatory agency wished to communicate with certain agency employees without going through the agency's legal counsel. The headnote summarizes: "A lawyer may not communicate with officers, directors, or managers of State Agency, or State Agency employees who are directly involved in the matter, and other State Agency employees whose acts or omissions in connection with the matter can be imputed to State Agency about the subject matter of a specific controversy or matter on which a lawyer knows or has reason to know that a governmental lawyer is providing representation unless the agency's lawyer first consents to the communication. A lawyer may communicate with other agency employees who do not fall within the above categories, and may communicate with employees who are considered represented by State Agency’s lawyer on subjects unrelated to those matters in which the agency lawyer is known to be providing representation. The lawyer may be required to identify himself or herself as a lawyer who is representing a party in making those contacts. Lawyers communicating with agency personnel are cautioned not to either purposefully or inadvertently circumvent the constraints imposed by Rule 4-4.2 and Rule 4-4.3 in their communications with government employees and officials. If a lawyer does not know or is in doubt as to whether State Agency is represented on a particular matter or whether particular State Agency’s employees or officials are represented for purposes of the rule, the lawyer should ask State Agency’s lawyer if the person is represented in the matter before making the communication."
Lawyer held in indirect criminal contempt and jailed for post-trial contact with juror after court denied permission. Alan v. State, 39 So.3d 343 (Fla. 2010). Lawyer represented a criminal defendant. The day after jury selection a juror asked the court to excuse her on the basis of a medical condition. The court replaced the juror. Lawyer then accused the juror "of having been 'tampered with' and made an oral request that the court permit him to obtain her medical records. The court expressly denied this request calling it 'nothing short of outrageous.'" After trial Lawyer filed a "Motion for New Trial, Notice of Intent to Interview Jurors, and a Request for Extension of Time to File Motion for Permission to Interview Jurors." Without court authorization, Lawyer called the juror. The court found Lawyer guilty of indirect criminal contempt and sentenced him to 5 months and 29 days in jail. The First DCA affirmed. Lawyer's contact with the juror did not comply with RPC 4-3.5(d)(4) or Fla.R.Crim.P. 3.575.
Court properly permitted treating physician to have ex parte pre-deposition conference with her own lawyer (excluding discussion of plaintiff's care and treatment). Hasan v. Garvar, 34 So.3d 785 (Fla. 4th DCA 2010). Non-party Treating Physician was noticed for deposition in a medical negligence case. Defendant and Treating Physician were insured by the same carrier, which retained separate lawyers to represent each of them. Plaintiff sought a protective order to prevent Treating Physician's lawyer from having a pre-deposition conference with her own lawyer, alleging that this would violate F.S. 456.057(8) (2009). Defendant agreed that the court could prevent Treating Physician from discussing the care and treatment of Plaintiff with her lawyer, but that she should be permitted to talk with her lawyer about "general deposition techniques." The court denied the motion for protective order. The Fourth DCA denied Plaintiff’s petition for writ of certiorari. The cases cited by Plaintiff all involved ex parte conferences between treating physicians and defendants' lawyers. This situation was distinguishable. Furthermore, the court was not willing to presume unprofessional conduct would occur simply because the same insurance company insured both Defendant and Treating Physician. "[I]it is our understanding that the ex parte conferences to which [Plaintiff's cited cases] refer were conferences between nonparty treating physicians and the defendants’ attorneys. We do not believe the temptation to violate a court-ordered prohibition is as strong in situations involving nonparty treating physicians and their own attorneys. Though we are not naïve, we also are not so cynical to accept the plaintiff’s assumption that the prohibition will be disobeyed simply because the same insurer is providing attorneys to both the defendants and the oral surgeon, albeit separate attorneys. See Comment to R. Regulating Fla. Bar 4-1.8(j) ('[T]he representation of an insured client at the request of the insurer creates a special need for the lawyer to be cognizant of the potential for ethical risks.'). As the plaintiff states in his petition, 'In theory at least, it should make no difference who pays the fees.'”
Court erred in enjoining parties, their counsel, and their agents from engaging in out-of-court publicity "consistent with" Rule 4-3.6. E.I. DuPont de Nemours and Co. v. Aquamar, S.A., 33 So.3d 839 (Fla. 4th DCA 2010). A newspaper article by the Florida Justice Reform Institute criticized the court's decision to strike Defendant's pleadings, enter a default judgment against it on liability, and order a trial on only damages. Plaintiff filed a motion for sanctions and to order Defendant "from Any Further Attempt to Influence Potential Jurors," claiming Defendant and its lawyers were behind the article. Two days later, at a hearing noticed for another purpose, the court "sua sponte, entered a temporary injunction 'directed to all parties and their counsel, and those that are working in concert with their respective agents and employees either directly or indirectly with the parties and/or their counsel, consistent with 4.3-6 of the Rules Regulating the Florida Bar not to participate, encourage, assist, or abet in the dissemination of any out-of-court publicity in this matter'.” The Fourth DCA reversed. There was no showing that the order was "necessary to preclude a substantial likelihood of material prejudice to the trial of the case. Furthermore, there was no evidence presented and there were no findings made that any out-of-court publicity posed a substantial and imminent threat to the fairness of the trial proceedings."
CONFIDENTIALITY AND PRIVILEGES Florida Bar approves opinion requiring lawyers to protect confidentiality of client information stored on devices like copiers, scanners, fax machines, and cell phones. Florida Ethics Opinion 10-2. The Florida Bar Board of Governors approved Florida Ethics Opinion 10-2, which addresses the ethical obligations of a lawyer who uses electronic "Devices" that store information, such as "computers, printers, copiers, scanners, cellular phones, personal digital assistants ('PDA’s'), flash drives, memory sticks, facsimile machines and other electronic or digital devices." The opinion discusses ethical duties of competence (Rule 4-1.1), confidentiality (Rule 4-1.6), and supervision (Rule 4-5.3). Significantly, the opinion applies these duties to situations and circumstances that arise outside of a lawyer's office, such as in hotels and copy centers. Opinion 10-2 states: "If a lawyer chooses to use these Devices that contain Storage Media, the lawyer has a duty to keep abreast of changes in technology to the extent that the lawyer can identify potential threats to maintaining confidentiality. The lawyer must learn such details as whether the Device has the ability to store confidential information, whether the information can be accessed by unauthorized parties, and who can potentially have access to the information. The lawyer must also be aware of different environments in which confidential information is exposed such as public copy centers, hotel business centers, and home offices. The lawyer should obtain enough information to know when to seek protection and what Devices must be sanitized, or cleared of all confidential information, before disposal or other disposition." This duty continues through the Device’s life cycle, even after it leaves the lawyer’s control. Additionally, a lawyer has a supervisory duty that "extends not only to the lawyer’s own employees but over entities outside the lawyer’s firm with whom the lawyer contracts to assist in the care and maintenance of the Devices in the lawyer’s control. If a nonlawyer will have access to confidential information, the lawyer must obtain adequate assurances from the nonlawyer that confidentiality of the information will be maintained." Importantly for lawyers, these ethical obligations extend to "sanitization" of Devices no longer being used, such as old copiers or discarded cell phones. "The lawyer has an affirmative obligation to ascertain that the sanitization has been accomplished, whether by some type of meaningful confirmation, by having the sanitization occur at the lawyer’s office, or by other similar means."
JCC's order requiring claimant to produce intake documents created by his lawyer is quashed due to attorney-client privilege. Hagans v. Gatorland Kubota, LLC / Sentry Ins., 45 So.3d 73 (Fla. 1st DCA 2010). Employer/Carrier in a workers’ compensation case sought production of lists of medical providers who had seen the Claimant and Claimant's prior workers' comp claims. Claimant responded that he did not have these lists, and that any lists his lawyer had "were confidential communications included in intake documents prepared by the attorney during a confidential meeting with Claimant for the purpose of providing legal advice and services" and so were protected as attorney-client privilege and work product. The Judge of Compensation Claims ("JCC") ordered production of the lists in the lawyer's possession. The First DCA quashed the order, concluding that the intake documents prepared by Claimant's lawyer were protected by the attorney-client privilege." (The court did not reach the work product issue.) The court discussed the privilege: "The attorney-client privilege exists to protect not only the giving of professional advice, but also the giving of information to the lawyer to enable him to render sound and informed advice. . . . A client’s confidential communication of facts to his attorney is protected by attorney-client privilege, even if the facts are discoverable by other means." (Citations omitted.) The court catalogued the harms that would occur if the order was upheld, stating that allowing discovery of the intake documents "would allow the adversary to function on the wits and labor of an opponent. Such an interpretation would be antithetical to the purposes underlying the attorney-client privilege and would additionally impose a chilling effect on an attorney’s efforts to fully explore and memorialize the facts underlying his client’s cause. . . . Further, if, as asserted by the Employer/Carrier, the facts communicated in a confidential meeting with an attorney are not protected by attorney-client privilege, a client would have little incentive to fully disclose information to his own attorney for fear that the confidential communication will be used against him. Moreover, to the extent the Employer/Carrier sought to introduce any portion of the intake sheet into evidence, Claimant’s attorney may well be required to become a witness in the case, rather than the client’s advisor and advocate – the role for which the privilege was created." (Citation omitted.) The court pointed out that Employer/Carrier would be permitted to depose Claimant and ask him about his medical and claims history.
Lawyer's agreement not to represent anyone against the law firm that formerly employed him does not violate public policy. Alan B. Garfinkel, P.A. v. Mager, __ So.3d ___ (Fla. 5th DCA, Nos. 5D09-1991, 5D09-3273, 12/23/2010). See discussion in “Law Firms” section.
Law firm disqualified based on unfair informational or tactical advantage obtained through receipt of opposing party's privileged materials. Castellano v. Winthrop, 27 So.3d 134 (Fla. 5th DCA 2010). See discussion in “Conflicts of Interest” section.
Florida Supreme Court adopts Rule of Civil Procedure addressing inadvertent disclosure of privileged materials. In re: Amendments to the Florida Rules of Civil Procedure, __ So.3d ___, 35 Fla.L.Weekly S494 (Fla., No. SC10-148, 9/9/2010). See discussion in “Rule Changes” section.
Court erred in ordering lawyer to produce file on separate, unrelated case in which he was representing same client. Toledo v. Publix Super Markets, Inc., 30 So.3d 712 (Fla. 4th DCA 2010). See discussion in “Files” section.
Information known to opposing party as a result of settlement in unrelated suit not protected by attorney-client privilege. Neiman v. Naseer, 47 So.3d 954 (Fla. 4th DCA 2010). Judgment Debtors appealed an order denying a motion for protective order and to quash a subpoena duces tecum in aid of execution seeking information about settlement money paid to one of the Debtors in an unrelated suit. Debtors resisted the subpoena on the basis of attorney-client privilege and a confidentiality agreement in the settlement. The Fourth DCA noted that the order in question was not reviewable on appeal as a non-final order, but treated the filing as a petition for writ of certiorari. The court then denied the petition. "[W]e agree with the circuit court that the information sought was not protected by the attorney-client privilege. The information was known to the other party to the settlement agreement in the unrelated lawsuit."
Security video and photos of department store accident scene not protected from disclosure as work product. Target Corp. v. Vogel, 41 So.3d 962 (Fla. 4th DCA 2010). Plaintiff sued defendant department store, alleging injuries due to a slip-and-fall. Before her deposition Plaintiff moved to compel production of 4 photos and a security video of the incident. The court granted the motion. The Fourth DCA denied Defendant’s petition for writ of certiorari. Surveillance films of a plaintiff made after the accident may be protected as work product, unless they are intended for use at trial. See Dodson v. Persell, 390 So.2d 704 (Fla. 1980). The instant situation was distinguishable because the it was "not protected work product, prepared 'to aid counsel in trying the case" but rather "was a video of the accident itself, discoverable under the Rules of Civil Procedure."
Amendments to Fed.R.Civ.P. 26 effective December 1, 2010, extend work product protection for expert witness reports and communications. See discussion in “Rule Changes” section.
Allegedly defamatory statements made by lawyer during potential witness interviews are absolutely privileged, per Fourth DCA. DelMonico v. Traynor, __ So.3d ___, 35 Fla.L.Weekly D1331 (Fla. 4th DCA, No. 4D08-4035, 6/16/2010), 2010 WL 2382570. See discussion in “Trial Conduct” section.
CONFLICTS OF INTEREST (INCLUDING DISQUALIFICATION) Court erred in granting Public Defender's motion to withdraw based on alleged "excessive caseload" conflict. State v. Bowens, 39 So.3d 479 (Fla. 3d DCA 2010). The Public Defender for the Eleventh Judicial Circuit ("PD11") moved to withdraw from representation of defendant Bowens, alleging that the "excessive caseload of Assistant Public Defender Jay Kolsky ['Kolsky'] prevents him from diligently and competently representing the defendant." Defendant argued that the excessive caseload conflict "will result in unavoidable prejudice where there is a substantial risk that Kolsky's representation will be materially limited by his responsibilities to other clients." The court granted PD11's motion to withdraw but rejected its motion to declare unconstitutional F.S. 27.5303(1)(d) (2007), which provides: "In no case shall the court approve a withdrawal by the public defender or criminal conflict and civil regional counsel based solely upon inadequacy of funding or excess workload of the public defender or regional counsel." The Third DCA quashed the disqualification but upheld the statute’s constitutionality. Citing State v. Public Defender, Eleventh Judicial Circuit, 12 So.3d 798 (Fla. 3d DCA 2009), the court reiterated that a determination on a motion to withdraw must be made on a case-by-case basis, considering whether counsel is sufficiently competent. Neither the statute nor State v. Public Defender preclude the granting of a motion to withdraw "upon determination of actual prejudice to a defendant's constitutional rights." (Emphasis by court.) In the instant case, however, there was "no evidence of actual or imminent prejudice to Bowens’ constitutional rights. If the trial court’s order stands, all that the PD11 must do to show prejudice is swear that he or she has too many cases or that the workload is so excessive as to prevent him or her from working on the client’s case prior to the scheduled trial, and that he or she will be forced to file for continuance, thereby waiving the client’s speedy trial rights. This 'prejudice' is not the type of prejudice that this Court referred to in State v. Public Defender."
Conflict rule governing concurrent representation of clients (RPC 4-1.7) does not permit analysis of whether conflict is "material." Lincoln Associates & Construction, Inc. v. Wentworth Construction Co., Inc., 26 So.3d 638 (Fla. 1st DCA 2010). Claimant sought workers' compensation benefits from both Lincoln/Guarantee and Wentworth/Summit. Each denied responsibility, with each pointing at the other. Law Firm represented Wentworth/Summit. Two months before the final hearing, Guarantee retained Law Firm to help audit Lincoln and "determine whether the claimant was listed in Lincoln’s payroll submissions and to locate the owner of Lincoln." When Lincoln/ Guarantee's lawyer learned that Law Firm was representing Guarantee, he moved to disqualify Law Firm from representing Wentworth/Summit in the workers' compensation case. The Judge of Compensation Claims ("JCC") denied the motion, ruling that there was no material conflict. The First DCA vacated the order denying disqualification. Rule 4-1.7 "forbids a lawyer from representing two clients in the same matter unless the lawyer reasonably believes the representation will not adversely affect the responsibilities to each client and each client consents in writing or on the record. To disqualify a law firm from concurrently representing a party whose interests are adverse, a client need only show that an attorney/client relationship exists." Law Firm conceded that it represented both Lincoln/Guarantee and Wentworth/Summit at the same time. "[T]he JCC erred in finding that the conflict had to be material. Rule 4-1.7 leaves no room for a 'materiality' analysis. When [Law Firm] failed to prove it had the written consent from each client, and failed to prove that the representation of both clients would not adversely affect the responsibilities to each client, the JCC should have granted the motion to disqualify." Quoting from Harvey E. Morse, P.A. v. Clark, 890 So.2d 496, 498 (Fla. 5th DCA 2004), the court noted that Rule 4-1.7 is "based on the ethical-concept requirement that a lawyer should act with undivided loyalty for his client and not place himself or herself in a position where a conflicting interest may affect the obligations of an ongoing professional relationship. . . . Such unseemly conduct, if permitted, would further erode the public’s regard for the legal profession."
Law firm's representation of an LLC did not create attorney-client relationship with LLC’s principal for purposes of disqualification. PMG Collins, LLC v. R and G Enterprises, LLC, 30 So.3d 605 (Fla. 3d DCA 2010). Plaintiff, a limited liability company, sued Defendant for rescission of a condominium unit sale. Plaintiff moved to disqualify Defendant's law firm "on the grounds that the law firm had previously personally represented one of the principals of the plaintiff LLC in unrelated matters." (Emphasis added.) The court disqualified Defendant's law firm. The Third DCA quashed the disqualification. "[T]he simple, acknowledged fact that counsel did not represent the plaintiff itself and thus cannot be in forbidden conflict with its interests renders the order completely unsupportable."
Court properly declined to disqualify former prosecutor from representing defendant, where lawyer had not substantially participated in defendant's prosecution; “playbook” argument rejected. State v. de la Osa, 28 So.3d 201 (Fla. 4th DCA 2010). Lawyer was in charge of the investigative unit of the statewide prosecutor's office in the county. The office investigated Defendant's activities. Four years after Lawyer left that office, Defendant was charged. Lawyer now represents Defendant in defending those charges. The state moved to disqualify Lawyer, asserting that Lawyer "had substantial participation in this case as a prosecutor." The court denied the motion, finding that Lawyer did not have substantial participation in the case. The state also was unsuccessful in its contention that Lawyer should be disqualified for a "playbook" reason, "because her employment with the task force gave her insight on the state’s strategy and position." The state’s argument failed because it "did not point to any specific strategic insight or confidential information [Lawyer] would have." The Fourth DCA denied the state’s petition for a writ of certiorari. The trial court "conducted an evidentiary hearing and determined that [Lawyer] had not obtained confidential information nor had the state proved that her work with the government four years earlier would provide her with an advantage in this case." Disqualification was properly denied. Note: Although not mentioned in the court's opinion, the result appears consistent with Rule 4-1.11(a).
Law firm disqualified based on unfair informational or tactical advantage obtained through receipt of opposing party's privileged materials. Castellano v. Winthrop, 27 So.3d 134 (Fla. 5th DCA 2010). Mother and Father were engaged in contentious paternity litigation. Mother "illegally obtained" a USB flash drive belonging to Father. The drive contained "the electronic equivalent of thousands of pages of documents and communications" including attorney-client communications between Father and his lawyer, attorney-client work product, and confidential medical, financial, and business information. Mother took the drive to Law Firm, which spent "in excess of 100 hours reviewing its contents 'although it was apparent within moments of inspection that it belonged to the Father and contained attorney/client communications with the Father's current counsel . . ., as well as a complete history and chronology of strategy, work product, and confidential communications spanning the near decade-long period of this litigation.'" Father moved to disqualify Mother's Law Firm. The court granted the motion, in addition to ordering other remedial measures (e.g., return of the flash drive and any copies of the documents, removal of the information from Law Firm's and Mother's computers). Mother petitioned for a writ of certiorari, contending that the remedies short of disqualification were sufficient. The appellate court denied the petition. "[D]isqualification is appropriate where a party obtains an unfair informational or tactical advantage through the disclosure of privileged information to that party's counsel. . . . Given the nature of the information obtained by the Firm from the USB drive, it cannot be reasonably disputed that an informational and tactical advantage was obtained by the Mother." (Citations omitted.) The court concluded: "For the benefit of other attorneys facing a similar dilemma, we note that the Florida Bar Commission [sic] on Professional Ethics has opined that when an attorney receives confidential documents he or she knows or reasonably should know were wrongfully obtained by his client, he or she is ethically obligated to advise the client that the materials cannot be retained, reviewed, or used without first informing the opposing party that the attorney and/or client have the documents at issue. If the client refuses to consent to disclosure, the attorney must withdraw from further representation. Fla. Bar Prof'l Ethics Comm., Formal Op. 07-1."
Delay in filing motion to disqualify operated as waiver of right to seek disqualification. Zayas-Bazan v. Marcelin, 40 So.3d 870 (Fla. 3d DCA 2010). Zayas-Bazan sued a corporation (Forex Consulting) and two of its officers and directors, Marcelin and Alvarez. Zayas-Bazan was a shareholder. More than 2 1/2 years after filing suit, Marcelin and Alvarez moved to disqualify Zayas-Bazan's counsel, the Carroll Law Firm ("Carroll"). The motion, based on Rule 4-1.9, alleged that Carroll previously represented the corporation in matters substantially related to Zayas-Bazan's suit. Zayas-Bazan argued that his opponents "waived their right to seek disqualification because they knew of the facts leading to the filing of their motion to disqualify since the lawsuit was filed, and the delay in filing the motion to disqualify was extremely prejudicial" to him. The court disqualified Carroll. It did not address the waiver issue. The Third DCA quashed the disqualification order. "Alvarez and Marcelin had actual knowledge of the facts leading to the claimed conflict prior to Zayas-Bazan filing the underlying lawsuit, but did not move to disqualify Zayas-Bazan’s counsel for more than two-and-one-half years after the lawsuit was filed. Alvarez and Marcelin suggest that they did not waive their right to move to disqualify Zayas-Bazan’s chosen attorney – the Carroll Law Firm – because they requested their previous attorneys to file a motion to disqualify the Carroll Law Firm, but their attorneys failed to do so. There is nothing in the record to substantiate this claim nor anything in the record to suggest that Marcelin and Alvarez discharged prior counsel due to their failure to file a motion disqualify. . . . More importantly, even after the trial court permitted Marcelin and Alvarez’s second attorney to withdraw in March 2009, they waited more than eight months before filing the motion to disqualify Zayas-Bazan’s counsel. Also, during the entire two-and-one-half-year period that the Carroll Law Firm represented Zayas-Bazan, Marcelin and Alvarez did not once notify Carroll or the Carroll Law Firm that they believed that an attorney-client relationship existed between the Carroll Law Firm and Forex Consulting. . . . [Citation omitted.] Instead, Marcelin and Alvarez permitted the Carroll Law Firm to spend substantial time in prosecuting Zayas-Bazan’s claims without objecting to its representation of Zayas-Bazan or filing a motion to disqualify." The trial court erred "by not concluding that Marcelin and Alvarez waived their right to seek disqualification, and in granting their motion to disqualify the Carroll Law Firm."
Disqualification of party's law firm premature where party not allowed to present evidence refuting movant's claims. Minakan v. Husted, 27 So.3d 695 (Fla. 4th DCA 2010). Husband moved to disqualify Wife's counsel in a divorce case. Husband alleged that Wife "hacked" into his email account and got a message from Husband to his lawyer. Wife's sister sent it to Wife's lawyer, who "recognized that the e-mail was an attorney-client communication, and sent the husband’s attorney a letter returning the email." Nevertheless, Husband moved to disqualify Wife's lawyer on the basis that Wife allegedly obtained an unfair advantage from the message. The court held a hearing at which Husband presented evidence. Wife's counsel pointed out that the court had not allowed Wife to present evidence regarding how she obtained the email. The court never allowed testimony on the issue and issued its ruling. "The court responded that it did not know whether the wife’s testimony would make a difference. The court explained that, even if it accepted the wife’s argument that the husband failed to protect the e-mail, the harm occurred when the wife had the email forwarded to her attorney. The court then found that the only remedy was to grant the motion disqualifying the wife’s attorneys." The Fourth DCA quashed the order, agreeing that Wife did not receive due process. "The wife’s evidence may have been relevant to her argument that the husband failed to treat the e-mail as confidential and waived any privilege claim over it. . . . The wife’s evidence also may have been relevant to whether the wife acted in bad faith in discovering and forwarding the e-mail. . . . Even if the wife’s evidence would not have impressed the court, a party has the right to present evidence and to argue the case at the conclusion of all the testimony." (Citations omitted.) The court remanded for a hearing "at which the wife may present her evidence." The court also stated that, on remand, the trial court "should determine whether the husband treated the e-mail as confidential and, if so, whether the wife gained an unfair advantage in discovering it and having it forwarded to her attorney. If the court determines that the wife gained an unfair advantage, then disqualification of the wife’s attorneys may be appropriate. Regardless of whether the wife gained an unfair advantage, however, disqualification and other sanctions still may be appropriate under the 'inequitable conduct doctrine' if the court finds that the wife, in bad faith, discovered the e-mail and had it forwarded to her attorney. If disqualification is not appropriate, the court can consider lesser remedies, such as precluding any discovery based on the e-mail’s contents, precluding the use of the email at trial, or both." (Footnote omitted.)
Court erred by ordering lawyer's disqualification after appeal had been filed. Kluck v. Cloninger, 39 So.3d 1277 (Fla. 5th DCA 2010). Lawyer represented Kluck in litigation. Kluck's opponent moved to disqualify Lawyer. The motion was heard after Kluck appealed an order in the case. The trial court disqualified Lawyer, but the Fifth DCA quashed the order. "The trial court lost jurisdiction when the notice of appeal was filed, and the order of disqualification entered during the pendency of the appeal was a nullity."
Law firm that outsourced trial preparation work had "palpable" conflict in defending client in provider’s suit for payment where firm could have been liable; firm could be subject to client's excessive fee claim under Rule 4-1.5. Liebreich v. Trial Strategies, Inc., 40 So.3d 1 (Fla. 2d DCA 2010). See discussion in “Fees” section.
Fifth DCA concurring opinion points out potential conflict when lawyer represents client in arguing for reversal of 57.105 sanctions order against both. Geiger v. Spurlock, 30 So.3d 704 (Fla. 5th DCA 2010). The Fifth DCA affirmed an award of fees and costs against a party and her lawyer pursuant to F.S. 57.105 (2005). Lawyer represented Client in the appeal. One judge wrote a concurring opinion pointing out a potential conflict of interest problem. "I write to express my concern regarding the conflict of interest issues created by the fact that [Lawyer]'s law firm is representing both [Client] and [Lawyer] in this appeal. In the initial brief filed in this matter [Lawyer] argued, inter alia, that it was error for the trial court to sanction her by directing her to pay half of [opposing party]'s attorney's fees. If [Lawyer] had been successful in arguing that point, [Client] could have been responsible for paying twice as much in attorney's fees. It is disturbing that [Lawyer]'s firm, while purporting to represent [Client]'s interests, sought a reversal of a trial court ruling which, as a consequence, could have resulted in an assessment against [Client] of twice as much liability. See Mullins v. Kennelly, 847 So.2d 1151 (Fla. 5th DCA 2003); R. Regulating Fla. Bar 4-1.7."
Lawyers and client sanctioned for appealing non-appealable order, and court notes that client may have conflict-free counsel when sanction amount is determined on remand. Maradriaga v. 7-Eleven35 So.3d 109 (Fla. 1st DCA 2010). Lawyers represented Appellant in a workers' compensation case. Lawyers appealed a non-appealable order of the JCC, and the appeal was dismissed by the First DCA for lack of jurisdiction. The appellate court ordered Lawyers to show cause why sanctions should not be imposed. "Because Appellant’s attorneys’ response to this court’s show cause order continues to evince ignorance of the rules of appellate procedure and case law, attorneys’ fees pursuant to section 57.105, Florida Statutes (2009), are hereby imposed against Appellant’s attorneys and Appellant. Because section 57.105 does not authorize the exclusion of Appellant from the responsibility to pay a portion of the fee, on remand for determination of a reasonable fee, the JCC should also determine whether Appellant should be afforded an opportunity to obtain conflict-free counsel."
In conflict of interest case, Florida Supreme Court imposes harsher disciplinary sanction than that recommended by referee. Florida Bar v. Scott, 39 So.3d 309 (Fla. 2010). See discussion in “Disciplinary Proceedings” section.
DISCIPLINARY PROCEEDINGS Florida Supreme Court disciplines lawyer who allowed non-lawyer to have signatory authority on escrow account. Florida Bar v. Hines, 39 So.3d 1196 (Fla. 2010). Lawyer handled real estate closings for Lending Group and opened an escrow account for the closings. Lawyer allowed the nonlawyer principal ["Principal"] of Lending Group to have signatory authority on the account. Lawyer did place caps on the amounts of money that Principal could access or control in the escrow account. For one closing that occurred in Orlando on short (same-day) notice, Lawyer express mailed 10 blank, signed account checks to a nonlawyer title processor for Lending Group. Lawyer did not attend the closing and did not review the closing documents. Escrow account checks were issued. Principal ordered a stop payment on a check issued in the transaction and misappropriated all of the funds involved, about $128,000. When Lawyer learned of the misappropriation, she notified law enforcement and worked to ensure that the sellers were made whole. The Bar charged Lawyer with ethical violations. The referee recommended that Lawyer be found not guilty of all charges. The Bar sought Supreme Court review of the referee's conclusions on several rules. The Supreme Court ruled that, although Lawyer's conduct reflected poor judgment, she did not violate any rules except Rule 4-5.3(b) (lawyer must make reasonable efforts to ensure that nonlawyers retained by or associated with lawyer act in manner compatible with lawyer's ethical obligations). The Court concluded: "[Lawyer's] professional obligations as a lawyer included holding and delivering possession of the escrowed funds in strict accordance with the principals’ agreement and supervising the closing in a reasonably prudent manner. By allowing [Principal], a nonlawyer whom she neither employed, supervised, nor controlled, essentially unfettered access to the funds held in the escrow account, [Lawyer] failed in her responsibility to ensure that she had 'in effect measures giving reasonable assurance' that [Principal]’s conduct would be compatible with those professional obligations. In fact, when it comes to the area of funds held in trust by a lawyer, we conclude that a reading of rule 4-5.3 in its entirety leads to only one reasonable conclusion. A lawyer may permit a nonlawyer to have authority or control over such funds only if that nonlawyer is employed by or under the direct supervision and control of the lawyer." (Emphasis by Court.) The Court remanded for a determination of the appropriate discipline. The Court distinguished Florida Ethics Opinions 64-40 and 64-40 (Reconsideration), regarding reliable nonlawyer employees of a lawyer having signatory authority on the trust account. "There is a critical distinction between an attorney’s office manager and a person who is neither employed by, responsible to, nor otherwise under the supervision and control of the lawyer as here."
In conflict of interest case, Florida Supreme Court imposes harsher disciplinary sanction than that recommended by referee and rejects “duty-to-the-public” defense. Florida Bar v. Scott, 39 So.3d 309 (Fla. 2010). Lawyer represented a client in a federal regulatory matter in which orders were entered prohibiting the client from engaging in certain activities. Three years later, the client secured a potential investor in a new venture. The investor was unaware of the client's prior regulatory background or criminal history. When asked by the investor about the client, Lawyer "made statements to the effect that [the client] was 'an honest man.'" Lawyer represented the client in business negotiations with the investor. The two individuals went into business, with Lawyer representing the business entity. Things unraveled and legal actions ensued. At various times Lawyer represented the client, the investor, the business entity, and other investors who had potential claims adverse to the business or the principals. Lawyer was disqualified from several of the suits due to conflicts. The Bar charged Lawyer with ethical violations. The referee found him guilty of violations including Rule 4-1.7 (current client conflicts of interest) and Rule 4-1.9 (former client conflicts). The referee recommended an 18-month suspension. The Supreme Court agreed that Lawyer was guilty of violations, but disagreed with the recommended sanction. The Court suspended Lawyer for 3 years, commenting that under the Florida Standards for Imposing Lawyer Sanctions Lawyer's conduct "comes close to that dividing line" between suspension and disbarment. The Court briefly addressed one unique argument presented by Lawyer. He contended that his "duty to protect the public took precedence over his duty to maintain client confidentiality or to decline the representation of a client where a conflict of interest exists or is likely to arise." The Court gave no credence to this contention, stating: "We reject [Lawyer]'s argument that it was permissible for him to represent the [entity's] investors despite the conflicts presented by his representation under some kind of duty-to-the-public exception. No such exception exists."
Florida Supreme Court disbars rather than suspends lawyer for misusing law to hurt members of public for personal gain. Florida Bar v. Hall, __ So.3d ___, 35 Fla.L.Weekly S458 (Fla., No. SC07-863, 8/26/2010), 2010 WL 3339168. Lawyer leased a pasture from the Godwins, an elderly couple. A handwritten addendum to the lease stated that the parties "will thereafter negotiate an agreement" for Lawyer's purchase of the land. Lawyer and the Godwins, however, could not agree on a price. Lawyer insisted that she had a contract to buy the property, rather than an agreement to negotiate. Lawyer's attempts to buy the property escalated. She filed a purported "Lease Agreement and Agreement for Sale" in the county clerk's office 2 years later, putting a cloud on the title and affecting potential buyers. It was determined that the document was forged. The Godwins had to hire legal counsel to resolve the problems created by Lawyer's actions. The Bar charged Lawyer, and the referee recommended that Lawyer be found guilty of violating Rule 4-8.4(c) (dishonesty, fraud, deceit, or misrepresentation) and recommended a 90-day suspension. The Bar sought Supreme Court review, arguing for a harsher discipline. The Court agreed and disbarred Lawyer. Even though Lawyer was found guilty of only a single violation of Rule 4-8.4(c), the conduct involved "ongoing, continuous misrepresentations for several years." The Court summarized: "[Lawyer] misused her status as an attorney to harm the Godwins: (1) by recording the fraudulent document in the clerk’s office, in order to tie up the Godwins’ property; (2) by asserting that the Godwins and their realtor would suffer for not complying with her legal claims; and (3) by forcing the Godwins to hire counsel to resolve the legal problems that Respondent created. Even after being informed that the Godwins had hired counsel, Respondent continued to directly harass them. This Court does not look favorably on those who use their standing as an officer of the court to deliberately harm others – especially when they intentionally hurt members of the public for their own personal gain. Further, in the instant case, Mr. and Mrs. Godwin were seniors, and Mr. Godwin was suffering from Alzheimer’s disease. [Lawyer] was preying upon this vulnerable couple."
Florida Supreme Court rejects suspension recommendation and instead disbars lawyer convicted of drug trafficking. Florida Bar v. Liberman, 43 So.3d 36 (Fla. 2010). Lawyer was severely addicted to methamphetamine and M.D.M.A. (ecstasy). "For years prior to his [2004] arrest, drugs controlled his life." Lawyer entered a plea agreement in 2006 and was adjudicated guilty of one felony count of trafficking of 10 grams or more but less than 200 grams of "Ecstasy." Upon conviction he was automatically suspended from the practice of law. The Bar charged Lawyer with violating Rule 3-4.3 (commission of any act unlawful or contrary to honesty and justice, whether committed in the course of relations as a lawyer or otherwise, whether a felony or misdemeanor, may constitute cause for discipline) and Rule 4-8.4(b) (lawyer shall not commit criminal act that reflects adversely on lawyer’s honesty, trustworthiness, or fitness as lawyer). Lawyer and the Bar submitted a guilty plea and consent judgment for a 3-year suspension. Despite the presence of substantial mitigation, the Supreme Court ruled that disbarment was appropriate. Lawyer's case involved drug trafficking and "there was no showing that [Lawyer] was incapacitated by his addiction." The Court noted that "[w]e have not hesitated in the past to disbar Florida attorneys with felony convictions involving drug trafficking." (Citations omitted.) Two justices dissented, and would have approved the recommendation of a 3-year suspension. "Although [Lawyer] pled guilty to the serious offense of drug trafficking, the overwhelming evidence in this case demonstrates that his misconduct stemmed from a severe addiction to drugs, did not arise from the practice of law, and resulted in no client harm."
Lawyer is disbarred, not suspended, for criminal convictions and misconduct relating to drug abuse; Court warns lawyers regarding drug use. Florida Bar v. Irish, __ So.3d ___, 35 Fla.L.Weekly S647 (Fla., Nos. SC08-1375, SC08-1552, SC08-1891, SC08-2398, 11/4/2010), 2010 WL 4340805. Lawyer was convicted of felonies arising from illegal drug use. The Bar charged him with criminal violations, as well as with neglect of client matters and misuse of client funds. The referee recommended disbarment. Lawyer sought Supreme Court review, asserting that suspension rather than disbarment was appropriate. Disagreeing, the Court disbarred Lawyer and reminded lawyers that illegal drug use will not be condoned: "The Court has noted that '[i]llegal drug activities are a major blight on our society . . . [and] [m]embers of the Bar should be on notice that participation in such activities beyond professional obligations will be dealt with severely.'" (Citations omitted.)
Lawyer permanently disbarred, rather than suspended as referee recommended, for uncharged income tax evasion. Florida Bar v. Behm, 41 So.3d 136 (Fla. 2010). Lawyer was suspended for 91 days in 2009. Subsequently the Bar filed a formal complaint against Lawyer alleging failure to maintain required trust account records and failing to file income tax returns and pay income taxes from 1996 to 2006. Lawyer was not charged with or found guilty of a crime in connection with failure to pay taxes. The referee recommended that Lawyer be found guilty of violating trust accounting rules. As to the tax evasion count, the referee recommended that Lawyer be found guilty of violating Rule 3-4.3 (acts unlawful or contrary to honesty or justice) and Rule 4-8.4(c) (dishonesty, fraud, deceit, or misrepresentation). Lawyer recommended a 90 day suspension for the trust accounting violations and a 91-day suspension for the tax misconduct. The Florida Supreme Court approved the guilt recommendations. Despite the fact that neither Lawyer nor the Bar petitioned for review of the sanction, the Court concluded that the recommended discipline was "far too lenient" and permanently disbarred Lawyer. The Court rejected Lawyer's assertion that the referee found he had a "good faith belief" that he was not required to file tax returns or pay taxes, stating: "[Lawyer]'s argument that he may 'refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists' without violating rule 4-8.4 has its limits. Where the claim asserted has been decisively rejected by the courts, the attorney can no longer maintain that his assertion of the claim is made in good faith and is not frivolous." The fact that Lawyer had not been charged with a tax-related crime was immaterial. "We reject [Lawyer]'s argument that he cannot be prosecuted by The Florida Bar for violations of the Rules Regulating the Florida Bar because he has not been prosecuted criminally for tax fraud or evasion. Rule 3-4.4 expressly allows the Bar to initiate disciplinary action 'regardless of whether the respondent has been tried, acquitted, or convicted in a court for the alleged criminal offense.'" The Lawyer imposed permanent disbarment in part because Lawyer "declared at oral argument before this Court that he fully intends to maintain his current course of conduct, i.e., he will continue to not file federal income tax returns and to not pay federal income taxes on money he earns in his law practice, apparently until someone shows him a more definitive law or United States Supreme Court opinion that disabuses him of his faulty beliefs." (Footnote omitted.) This stance "is anathema to an attorney‘s ethical obligation to respect and obey the law."
Florida Supreme Court rejects referee's recommendation of lesser sanction and suspends lawyer for 1 year for violations relating to candor and conflict of interest. Florida Bar v. Head, 27 So.3d 1 (Fla. 2010). Lawyer represented Clients in a mortgage foreclosure that led to Clients filing bankruptcy. Clients owed the lender money, and also owed Lawyer money for legal work. Clients got financing to pay off the mortgage. At the refinancing closing, Lawyer sought $10,000 for his outstanding fees. The primary reason for the refinancing was to pay off the mortgage creditor, but the $10,000 payment to Lawyer from the loan proceeds "prevented the achievement of this goal." Lawyer filed two different HUD statements regarding the transaction. Additionally, Lawyer made filings that the bankruptcy court later found "disingenuous," and that court also found that Lawyer's conducted created a conflict with his clients and violated provisions of the Bankruptcy Code. Lawyer filed a "Suggestion of Bankruptcy" for his law firm, but never petitioned for bankruptcy. The Florida Bar charged Lawyer, and the referee found Lawyer guilty of violating Rule 4-3.3 (falsely representing to court that law firm filed for bankruptcy protection), Rule 4-1.7 (conflict of interest with Clients by accepting $10,000 payment that kept Clients from paying off creditor), Rule 4-3.1 (filing frivolous pleading by filing false suggestion of bankruptcy), Rule 4-4.1 (false statements to bankruptcy trustee by filing suggestion of bankruptcy), Rule 4-8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), and Rule 4-8.4(d) (conduct in connection with practice of law that is prejudicial to the administration of justice). The referee recommended that Lawyer be suspended for 60 days. The Florida Supreme Court rejected the recommended discipline and instead suspended Lawyer for 1 year and thereafter until he proves rehabilitation. "[Lawyer] argues that his misconduct was 'minor.' Contrary to his perspective, the Court does not view violations of rule 4-8.4(c) . . . and rule 4-8.4(d) . . . as minor. The Court has clearly stated that 'basic, fundamental dishonesty . . . is a serious flaw, which cannot be tolerated' because dishonesty and a lack of candor 'cannot be tolerated by a profession that relies on the truthfulness of its members.' Fla. Bar v. Rotstein, 835 So. 2d 241, 246 (Fla. 2002). Dishonest conduct demonstrates the utmost disrespect for the court and is destructive to the legal system as a whole." The Court rejected Lawyer's contention that he lacked intent to commit misconduct. "[I]t is well established in disciplinary case law that 'in order to satisfy the element of intent it must only be shown that the conduct was deliberate or knowing.'" (Citations omitted.) The Court also confirmed the finding of a conflict of interest. "[Lawyer] knew his clients were unable to pay his fee unless they used money from the refinancing loan. In accepting the $10,000 from the refinancing, he knew his clients would be unable to pay off their primary creditor, Turner. Paying Turner in full had been the main objective for the refinancing loan. Thus, [Lawyer]’s action created a conflict of interest that proved detrimental to his clients."
Florida Supreme Court imposes stricter discipline than recommended by referee in case involving conflict, competence, and misrepresentation. Florida Bar v. Shankman, 41 So.3d 166 (Fla. 2010). Lawyer was charged by the Florida Bar with ethics violations. The Court approved most but not all of the referee’s recommendations regarding guilt, but rejected the recommended discipline (a 90-day suspension) as too lenient and ordered Lawyer suspended for 6 months. Lawyer represented a 17-year-old female on a potential federal court claim for unauthorized videotaping and distribution of her spring break activities. Lawyer had less than 3 years practice experience, and none in federal court. Lawyer associated another law firm, and they signed a contingent fee agreement with Client. Lawyer was to receive 9.6% of the gross recovery. Later Lawyer advised Client to replace the first law firm with another firm, with Lawyer to receive a higher percentage. Lawyer then advised Client to fire the second firm and hire a third law firm, with Lawyer to get a still larger share. The pattern was repeated with two more law firms. Client finally fired Lawyer and retained new counsel. Lawyer filed an action in federal court seeking fees from Client on a quantum meruit basis; he sought 45% of Client's recovery. The Court approved the referee's findings that Lawyer failed to provide competent representation (Rule 4-1.1), failed to sufficiently explain matters to Client in order for Client to make informed decisions (Rule 4-1.4(b)), and allowed his personal interest in a fee to delay the resolution of the case and increased the cost to Client (Rule 4-1.7(b) and Rule 4-8.4(d)). The Court rejected the referee’s recommendation that Lawyer be found guilty of charging an excessive fee: "[T]he referee relied upon two facts – i.e., that the percentage of [Lawyer]’s fee increased with each subsequent hiring of a new law firm and that [Lawyer] sought 45 percent of the client’s recovery in his action for quantum meruit in federal court. While the record supports these findings of fact, they are an insufficient basis upon which to conclude that [Lawyer]’s fee was excessive. Moreover, the Bar did not present expert testimony to establish that [Lawyer]’s fee was unreasonable." The Court concluded that the referee erred in not finding Lawyer guilty of Rule 4-8.4(c) (dishonesty, misrepresentation, fraud, or deceit). The referee misapplied the rule’s "intent" requirement. The conduct need only be "deliberate or knowing." The Court concluded "that the Bar established the element of intent by clear and convincing evidence in the record, based upon [Lawyer]’s deliberate conduct in telling his client not to speak to the fired attorneys or she would owe them fees and that she would not have to pay the other lawyers." Finally, the Court ruled that the recommended sanction of a 90-day suspension was too lenient and concluded that a 6-month suspension was the appropriate sanction.
Florida Supreme rejects referee's recommended sanction and disbars suspended lawyer found guilty of contempt. Florida Bar v. Bitterman, 33So.3d 686 (Fla. 2010). Suspended Lawyer used her Florida Bar card to visit a friend in jail. Lawyer unsuccessfully tried to get the friend to sign a lease giving her an interest in a car. Lawyer then went to a towing company, again used her Florida Bar card to represent herself as the friend's counsel, and had the auto released to herself. The friend had to file a replevin action to get her car back. The Florida Bar petitioned to hold Lawyer in contempt. The referee found that Lawyer's actions constituted contemptuous conduct by a suspended attorney and recommended a 30-day suspension and a 3-year probation upon reinstatement. On review, however, the Supreme Court disbarred Lawyer, citing her actions, her disciplinary history, and case law.
Conduct resulting in finding of no probable cause can be used as aggravating factor in disciplinary case. Florida Bar v. Ratiner, 46 So.3d 35 (Fla. 2010). See discussion in “Professionalism” section.
Florida Supreme Court disciplines lawyer for using firm name containing term "expert." Florida Bar v. Doane, 43 So.3d 640 (Fla. 2010). The Florida Supreme Court issued an order in a disciplinary case enjoining Lawyer from using the term "Expert" or "Experts" in any ad or trade name, and placing him on probation for one year (with conditions that he attend the Bar's Advertising Workshop and have the Bar pre-approve his ads). Justice Lewis vigorously dissented, continuing to express his dissatisfaction with the Court's approval of the rule change that permitted board-certified lawyers to describe themselves as "experts." (See In re Amendments to the Rules Regulating the Fla. Bar, 978 So.2d 91 (Fla. 2007) (Lewis, J., concurring in part and dissenting in part); In re Amendments to the Rules Regulating the Fla. Bar – Advertising, 971 So.2d 763 (Fla. 2007) (Lewis, J., concurring in part and dissenting in part).) He stated in part: "This Court should have never allowed attorneys to exploit inexperienced clients by adopting the unverifiable, qualitatively based designation of 'expert.'" The Court subsequently denied Lawyer’s motion for rehearing, with Justice Lewis again writing a dissent.
Florida Supreme Court rejects stipulation for reinstatement of suspended lawyer due to her failure to pay restitution and costs. Florida Bar re: Thompson (Fla., No. SC09-263, 2/18/2010). Suspended Lawyer and the Florida Bar stipulated to Lawyer's reinstatement. The referee approved the stipulation. On review, however, the Florida Supreme Court issued an order disapproving the referee's report and rejecting the stipulation. Two justices dissented. Lawyer had not paid the restitution ordered at the time of her suspension ($1600 to one client and $800 to another), nor paid the costs of more than $4600. According to the Bar, Lawyer had not paid "due to financial constraints." Justice Pariente, in her dissent joined by Justice Perry, stated: "Neither the Bar nor the referee found any evidence of bad faith. The Bar, after determining the respondent’s financial inability to pay, reimbursed the clients and thus the respondent now owes The Florida Bar Client Security Fund. The Bar agreed to a payment plan, approved by the Board of Governors and the referee, and the repayment would be a condition of her probation. I would thus grant the petition for reinstatement and require compliance with the payment plan to be a condition of probation."
FEES (INCLUDING ATTORNEYS’ LIENS) Law firm could not assert retaining lien over its files in contingent fee cases because contingency had not yet occurred. Brickell Place Condo Ass'n, Inc. v. Joseph H. Ganguzza & Associates, P.A., 31 So.3d 287 (Fla. 3d DCA 2010). Law Firm represented two condominium associations in collection and foreclosure cases. When Law Firm's sole shareholder died, the Associations directed Law Firm to transfer the files to their new counsel. Law Firm declined, instead filing a retaining lien and refusing to provide the Associations with a copy of the files "unless the Associations paid the law firm for its services on the pending collection and foreclosure cases even though the delinquent unit owners had not brought their accounts current." The Associations sought injunctive relief to get a copy of their files. They argued that the matters were handled by Law Firm on a contingent fee basis and that, because the contingency (i.e., collection) had not occurred, Law Firm had no right to a retaining lien. The court denied the Associations' motion. The Third DCA reversed. A law firm ordinarily may assert a retaining lien over files until outstanding fees are paid or adequate security for payment has been posted, but there are exceptions. "The exceptions are where the client pays the fees due; the client furnishes adequate security for the payment which may be due or which is subsequently found to be due; there is a clear necessity in a criminal case and a defendant cannot post security; or a lawyer’s misconduct caused his withdrawal. [Wintter v. Fabber, 618 So.2d 375, 377 (Fla.4th DCA 1993).] An additional exception is in contingency fee cases where the contingency has not occurred. See Fla. Bar Ethics Dep’t, Opinion 88-11 (Reconsideration) (1993) (holding that an attorney may not ethically assert a retaining lien for fees allegedly owed in a contingency fee case unless and until the contingency has occurred); Fla. Bar v. Doe, 550 So.2d 1111, 1112 (Fla. 1989)." Law Firm's fee agreement was a contingent one. Because the contingency had not occurred, Law Firm could not legally or ethically assert a retaining lien over the files. The court noted that the firm could file a charging lien for fees on a quantum meruit basis.
Court erred in imposing charging lien before rendition of final judgment in underlying case. Walia v. Hodgson Russ LLP, 28 So.3d 987 (Fla. 4th DCA 2010). Law Firm represented Husband in a divorce case. Law Firm withdrew prior to trial and filed a notice of charging lien. After a hearing the court issued a final judgment establishing a charging lien in favor of Law Firm. When the lien was imposed the underlying dissolution action "was still pending and unresolved." The Fourth DCA reversed. "An essential prerequisite to imposition of a charging lien is that the underlying litigation produces a positive judgment or settlement – in other words, some 'tangible fruits of the attorney’s service' for the benefit of the client." (Citations omitted.) No final judgment had been rendered in the divorce action. No property had been distributed. "The trial court imposed a charging lien on a prospective judgment that [Husband] may or may not receive at a future date. Because the underlying dissolution action has not reached a final judgment, imposition of a charging lien was premature."
Lawyer's charging lien filed after dismissal of underlying case was untimely and thus unenforceable. Naftzger v. Elam, 41 So.3d 944 (Fla. 2d DCA 2010). Attorney Elam represented Naftzger and her husband on a contingent fee basis in a premises liability action. The clients replaced Elam with another lawyer. The case settled and was dismissed with prejudice on April 6, 2009. On April 16 Elam "filed a petition in the same action seeking to enforce a charging lien for $12,000 in attorney's fees for work he performed on Naftzger's case prior to his discharge. Naftzger objected to the fee request and argued that the trial court no longer had jurisdiction to award fees because the underlying case had been dismissed." The court, however, ruled that Elam was entitled to enforce his charging lien. The Second DCA reversed. Timely notice is one requirement when a lawyer wishes to enforce a charging lien for fees allegedly owed. Notice of the charging lien must be filed or the lien pursued in the action before entry of a final judgment or dismissal of the case. The court concluded: "Attorney Elam did not meet the timely notice requirement because he did not file a notice of charging lien or pursue a lien in the pending premises liability action before the trial court entered its order dismissing the action pursuant to the stipulation for dismissal."
Charging lien cannot be enforced on recovery for insurance proceeds on hurricane-damaged homestead property. Quiroga v. Citizens Property Ins. Corp., 34 So.3d 101 (Fla. 3d DCA 2010). Law Firm represented Client on a contingent fee basis in seeking to secure homeowner's insurance proceeds for hurricane damage. Client's house was homestead property under Florida law. Client showed his gratitude by terminating Law Firm’s fee agreement and "claiming the insurance proceeds are exempt homestead property, not subject to attachment by means of a charging lien." The court denied Law Firm's motion for a charging lien on the proceeds. Reluctantly, the Third DCA affirmed. "Because [Client] did not and, as a matter of public policy in this State, cannot through an unsecured agreement, such as the contingent fee agreement in this case, enter into an enforceable contract to divest himself from the exemptions afforded him through Article X, section 4(a), see Chames v. DeMayo, 972 So.2d 850, 853 (Fla. 2007), this Court is compelled to affirm the order under review, the equities of the matter notwithstanding." (Citations omitted.)
Fourth DCA questions but upholds requirement of independent expert witness testimony in charging lien case; question certified to Supreme Court. Robin Roshkind, P.A. v. Machiela, 45 So.3d 480 (Fla. 4th DCA 2010). Law Firm represented Client in a divorce case. Law Firm was owed unpaid fees. The firm moved to withdraw and filed a Notice of Charging Lien. The court granted the motion to withdraw and held a hearing on the motion to enforce the charging lien. The Firm’s lawyer who was handled the case "testified to the firm’s engagement and the client’s failure to object to the bills in writing as provided for in the retainer agreement. In addition, the court received into evidence the retainer agreement, the complete billing history, and the Notice of Charging Lien. The court denied the motion based upon the Firm’s failure to call an independent expert witness to testify as to the reasonableness of the fees." Law Firm appealed, arguing that the court erred in requiring independent expert witness testimony regarding fees. Reluctantly, the Fourth DCA affirmed. Although it had "previously questioned the judicially-created requirement of independent expert witness testimony establishing the reasonableness of attorney's fees" (citations omitted), the court conceded that this requirement "remains etched in our case law. This is because attorneys have an ethical duty, pursuant to the Florida Rules Regulating the Florida Bar, to charge fair and reasonable fees, regardless of the terms of the fee agreement." Because the court questioned the viability of the independent expert witness requirement, especially in a case involving a dispute between a law firm and its client, it certified this question to the Florida Supreme Court: "Is expert witness testimony necessary to establish attorney’s fees due under a charging lien against a client, who has entered into a retainer agreement that requires all fee disputes to be made in writing within thirty days of the bill’s receipt and has failed to object?"
Summary proceeding brought by former clients to contest out-of-state law firm's charging lien must meet pleading requirements to establish personal jurisdiction. Jaffe & Hough, P.C. v. Baine, 29 So.3d 456 (Fla. 2d DCA 2010). Florida residents ("Clients") hired a Pennsylvania law firm ("Law Firm") in a products liability claim. Clients discharged Law Firm before suit was filed. Clients hired a Florida law firm, which filed suit in Florida. The case was settled. Law Firm notified the defendant's counsel of its claim of an attorney's lien. Clients then "initiated a summary proceeding by filing a complaint in the products liability action in" Florida that sought "to 'determine former attorneys' [Law Firm]'s charging lien'." Law Firm filed suit for fees in Pennsylvania and also moved to dismiss the Florida action based on lack of personal jurisdiction. The court summarily denied the motion to dismiss. The Second DCA reversed. Clients contended that under applicable case law they were required to seek determination of Law Firm's entitlement to a charging lien as a summary proceeding in the original action. The appeals court disagreed. "[Clients] argue that under Daniel Mones, P.A. [v. Smith, 486 So.2d 559 (Fla. 1986)], the preferred method for them to determine [Law Firm]'s entitlement to a charging lien was to file a summary proceeding in the original action. However, Daniel Mones, P.A. addressed what the attorney who sought to impose a charging lien must do. That case does not address what a client can or should do to contest a potential charging lien. Further, even if the client could initiate a proceeding to determine the existence of a charging lien, Daniel Mones, P.A. does not exempt the client in such a proceeding from the pleading requirements to establish personal jurisdiction over a foreign defendant under Venetian Salami [Co. v. Parthenais, 554 So.2d 499 (Fla. 1989)]."
Law firm that outsourced trial preparation work had "palpable" conflict in defending client in provider’s suit for payment where firm could have been liable; firm could be subject to client's excessive fee claim under Rule 4-1.5. Liebreich v. Trial Strategies, Inc., 40 So.3d 1 (Fla. 2d DCA 2010). A 2-lawyer Law Firm represented an Estate in a wrongful death suit on a contingency basis. The suit became a major undertaking. Law Firm retained a trial and jury consultant ("TSI") to assist in case preparation. (TSI's work "look[ed] like the product of a paralegal or young associate attorney.") Neither Law Firm nor the Estate had a written contract with TSI. Law Firm paid TSI a monthly retainer for a while but at some point stopped paying. TSI sued the Estate seeking more than $1.2 million in fees. Law Firm and co-counsel defended the Estate. The court found that "the parties through their agents entered into an oral agreement for [TSI] to provide jury consulting and other services'" and entered judgment for TSI in the amount of almost $73,000. The Second DCA affirmed, specifically stating that its affirmance "should not prevent the Estate from seeking other remedies, including reimbursement of this amount from [Law Firm] under the contingency fee agreement between them." The court was compelled to reject an argument that was "improperly presented" – i.e., that an oral contract did not exist between the Estate and TSI, but rather between Law Firm (or one of its lawyers) and TSI. The court saw "considerable merit to this argument." The court further stated: "[Law Firm], in its capacity as attorneys for the Estate, never pleaded that the oral contract was a contract only between the law firm and TSI. The conflict that has existed at all times between the Estate and its lawyers in this adversary proceeding is palpable, but we cannot conclude that the conflict creates fundamental error as to the judgment in favor of TSI." The court went on to discuss the nature of the conflict and the potential remedy available to the Estate. If the amount and appropriateness of TSI's fee was raised by the Estate in a fee dispute with Law Firm under Rule 4-1.5, the Estate could make "many arguments that have not been made in this case. The most obvious argument available for the Estate would be that the 'trial consultant' services were little or nothing more than the type of work that [Law Firm] had agreed to perform on a contingency and that the services of TSI merely shifted work the law firm should have performed under its contingency agreement into 'costs' over and above those fees. This is an argument that would involve not merely the $72,926.06 judgment, but the entire $232,926.06 paid to TSI."
First DCA interprets contingent fee contract in favor of clients in breach of contract action against former lawyer. Rose v. Steigleman, 32 So.3d 644 (Fla. 1st DCA 2010). Lawyer represented Clients in a personal injury case. Lawyer filed suit and engaged in "protracted settlement negotiations." The defendants never filed an answer. Lawyer got a recovery for Clients and charged 40% as his fee, but Clients asserted that he was entitled to only 33 1/3 %. The contract provided in pertinent part: "As compensation for services, I agree to pay said attorney a contingent fee computed as follows: (1) 33 1/3% of any recovery up to $1 million through the time of filing of an answer or the demand for appointment of arbitrators; (b.) 40% of any recovery up to $1 million through the trial of the case; (c.) 30% of any recovery between $1-2 million; (d.) 20% of any recovery in excess of $2 million; (e) if all defendants admit liability at the time of filing an answer and request a trial only on damages; (I) 33 1/3% of any recovery up to $1 million through trial; (ii) 20% of any recovery between $1-2 million; (iii) 15% of any recovery in excess of $2 million; (f) an additional 5% of any recovery after notice of appeal is filed or post-judgment relief or action is required for recovery on the judgment." Clients sued Lawyer, alleging breach of contract. The court entered a judgment for Lawyer, finding "that 'the language in the contract ‘through the time of filing of an Answer’ deals with a time frame and does not require the actual filing of an Answer to bring the 40% provision into effect. . . .'" The First DCA reversed. Although no answer was filed in the underlying case, Lawyer argued that a 40% contingent fee was authorized under Rule 4-1.5(f)(4)(B) and that his fee contract should be interpreted in accordance with the rule. Under this rule, "a contingent fee agreement may provide for a contingent fee of 40 percent of any recovery if no answer is filed and the time period for filing an answer has expired. If the contract here had adopted the language of the rule, we would agree with [Lawyer]’s argument. The contract before us, however, differs from the rule. The representation agreement provides that [Lawyer] will be paid '33 1/3% of any recovery . . . through the time of filing of an answer. . . .' The agreement does not provide for the situation in which no answer is filed, but the time period for filing an answer has expired. Accordingly, under the unambiguous language of the contract, because no answer was filed, [Lawyer]’s fee was limited to 33 1/3 percent of the recovery."
Lawyer not licensed in Florida may not collect fee in quantum meruit for legal services provided in Florida in probate and trust matter. Morrison v. West, 30 So.3d 561 (Fla. 4th DCA, 2010). Client contacted Lawyer, who was licensed to practice law in North Carolina but not Florida, about representation in an estate matter. Lawyer agreed to investigate for a $10,000 fee "and reserved the right to modify the fee arrangements if the scope of his engagement changed." Lawyer wrote to Client that he would need to be admitted pro hac vice in Florida and to associate with Florida counsel. Later Lawyer agreed to perform legal services for Client in the estate matter. Lawyer wrote another letter to Client again stating that he was not admitted to practice in Florida and would need to bring in a Florida-admitted lawyer. Lawyer contacted a Florida law firm about possible involvement, but the firm was not hired. The case settled at mediation. The day before the hearing to approve the settlement, Lawyer went to Client's home and asked her to sign the agreement and another document obligating her for a $1,000,000 fee. Client fired Lawyer. The court approved the settlement and ordered that the $1,000,000 fee be placed in the trust account of one of Client's prior lawyers. The money was subsequently disbursed to Client. The court later ordered Client to return the money to the trust account, but she could not do so. Client filed a declaratory judgment action, contending that Lawyer engaged in the unlicensed practice of law and was not entitled to a fee. Client contended that her fee agreement with Lawyer was void ab initio and unenforceable because he was not admitted to practice in Florida. Lawyer counterclaimed. The court "found that [Lawyer] engaged in the unauthorized practice of law and that his retainer agreement was void ab initio" but also ruled that "allowing [Client] to retain the fruits of [Lawyer]’s representation without compensation would be unjust enrichment" and awarded a fee to Lawyer based on quantum meruit. The Fourth DCA affirmed. "The trial court appropriately recognized that [Lawyer]’s letter contract with [Client] was void ab initio based upon Chandris, S.A. v. Yanakakis, 668 So.2d 180 (Fla. 1995). The court also observed that the unlicensed practice of law is illegal in Florida. See F.S. 454.23. "To award fees for illegal activities is contrary to public policy." Reversal of the quantum meruit fee award was required by the court’s decision in Vista Designs, Inc. v. Silverman, 774 So.2d 884 (Fla. 4th DCA 2001), which followed Chandris. The court also rejected Lawyer's claim that his conduct was permissible under the 2005 amendments to Rule 4-5.5, concerning multijurisdictional practice.
Fourth DCA urges Supreme Court to allow trial courts to sanction attorneys for reckless misconduct, not just bad faith. Rivero v. Meister, 46 So.3d 1161 (Fla. 4th DCA 2010). Defendants and Defense Counsel failed to appear for a jury trial and Plaintiff moved for sanctions. The court granted the motion. The order did not find bad faith on the part of Defense Counsel, instead finding that the problem was caused by counsel's "negligence." Reluctantly, the Fourth DCA reversed. In Moakley v. Smallwood, 826 So.2d 221, 227 (Fla. 2002), the Florida Supreme Court ruled that trial courts had inherent authority to assess fees against a lawyer "based upon an express finding of bad faith conduct" that was "supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees." Here, because the trial court did not make an express finding of bad faith conduct by Defense Counsel, the appeals court was "required to reverse." The court was "concerned with the unfairness of this result," where Defense Counsel's "committed misconduct" that was "noncompensable because the defendants’ attorneys’ misconduct did not rise to the level of bad faith." The court called upon the Florida Supreme Court to revisit the standard set in Moakley. "As Justice Wells pointed out in his concurring opinion in Moakley, 'bad faith is not defined' in the majority opinion. 826 So.2d at 228 (Wells, J., concurring). In our view, 'bad faith' should be defined to include at least both intentional misconduct and reckless misconduct." (Emphasis by court.) The court certified this question as one of great public importance: "DOES THE DEFINITION OF 'BAD FAITH CONDUCT' IN MOAKLEY V. SMALLWOOD, 826 SO.2D 221 (FLA. 2002), INCLUDE RECKLESS MISCONDUCT WHICH RESULTS IN THE UNNECESSARY INCURRENCE OF ATTORNEYS’ FEES?"
Fourth DCA narrowly construes attorney's fee clause in contract and does not apply F.S. 57.107(7) reciprocity. Florida Hurricane Protection and Awning, Inc. v. Pastina, 43 So.3d 893 (Fla. 4th DCA 2010) (en banc). Homeowner hired Contractor to install shutters. When Contractor didn't finish the job, Homeowner hired someone else and sued Contractor for breach of contract. Homeowner prevailed and then sought fees. The attorney's fees provision in the contract stated: "Purchaser is responsible for all costs of collection including Attorney's fees." Homeowner claimed fees under the contract provision and F.S. 57.105(7) (2008), which provides for reciprocity of fee provisions in contracts. The county court awarded fees to Homeowner. The circuit court, in its appellate capacity, affirmed. Contractor petitioned for certiorari review. A majority of Fourth DCA quashed the fee award. The fee provision in the contract was triggered only in a collection action and did not apply in any other type of dispute. "[T]he contract provided fees for the contractor in the event of a collection action. Section 57.105(7) requires reciprocity. Reciprocity would allow for the homeowner to receive fees if she prevailed in a collection action brought by the contractor. That is mutuality; that is reciprocity. To rule otherwise would be tantamount to re-writing the contract between the parties. This we will not do."
Court abused discretion in amount of appellate attorneys' fees award and in failing to award fee for fee expert's testimony. D'Alusio v. Gould & Lamb, LLC, 36 So.3d 842 (Fla. 2d DCA 2010). D'Alusio prevailed in an appeal by Gould & Lamb concerning a noncompete agreement. D'Alusio moved for appellate fees. D'Alusio presented expert testimony regarding the number of hours and a reasonable hourly rate. His expert concluded that $23,520 would be a reasonable fee. Gould & Lamb’s expert opined that a reasonable fee would be $22,000. The court awarded only $6875. The court also did not enter a cost award for fee expert presented by D'Alusio. The First DCA concluded that the court abused its discretion in the amount of the fee award. "Although the judge was not bound by the expert opinions or attorney affidavits in setting the award, the record is totally devoid of any evidence to support a conclusion that the award was reasonable." The court also erred in not awarding a fee for D'Alusio's fee expert. "Our court has held that '[e]xpert witness fees paid to the testifying expert are not discretionary if the attorney expects to be compensated for his testimony.'" (Citations omitted.)
Award of appellate attorney's fees must be supported by expert testimony, per Second DCA, and fees paid to out-of-state lawyers ordinarily should be based on Florida rates. Sourcetrack, LLC v. Ariba, Inc., 34 So.3d 766 (Fla. 2d DCA 2010). Appellants appealed an award of appellate fees, contending that the court erred by not requiring Appellees to present expert testimony concerning reasonable and necessary fees. The court had relied on earlier expert testimony concerning reasonable fees for trial work. The Second DCA reversed. Despite "some debate about whether trial judges should be given greater latitude to award attorney's fees without always receiving expert testimony," the court affirmed that it "continues to require such testimony." The court also commented that the fees paid to the out-of-state lawyers who appeared pro hac vice should be based on rates of local Florida lawyers: "The appellees were certainly free to retain the attorneys of their choice. But the appellants should not have to bear liability for additional fees absent some showing that these attorneys had a special expertise that required their participation at hourly rates above those normally charged by local attorneys handling comparable cases, or a showing of some alternative basis warranting fees above the market rate in this district."
JCC erred in awarding fees based on customary hourly rate in area rather than statutory fee schedule. Smith v. Gulf Coast Hospital, 31 So.3d 297 (Fla. 1st DCA 2010). Claimant in a workers' compensation case sought attorney's fees under F.S. 440.34(1) (1999). The Judge of Compensation Claims ("JCC") "determined that a fee based on the statutory fee schedule would amount to $35,367.55, or roughly $643.00 per hour. Solely because such a fee would result in an hourly rate 'higher than is typically awarded in the district,' the judge concluded that the presumptive statutory fee would be inappropriate. Instead, she awarded $200.00 per hour for 35 hours, resulting in a fee of only $7,000.00." Relying on Alderman v. Florida Plastering, 805 So.2d 1097 (Fla. 1st DCA 2002), the First DCA reversed. The JCC abused her discretion by placing undue reliance on one of the factors listed in the statute, the fee customarily charged in the locality.
JCC erred in awarding fees based on present value of future benefits to be received by claimant. Interstate Brands Corp./Broadspire v. Blanco, __ So.3d ___, 35 Fla.L.Weekly D2599 (Fla. 1st DCA, No. 1D10-271, 11/30/2010), 2010 WL 4829955. Lawyer represented Claimant in a workers' compensation proceeding. Claimant was receiving permanent total disability ("PTD") and PTD supplemental benefits, but the payments stopped without explanation. Lawyer petitioned for reinstatement of benefits on March 25, 2008. The employer/carrier ("E/C") did not file a response. On May 7, 2008, the E/C paid Claimant the past-due benefits with penalties and interest, and resumed the scheduled payments. Lawyer sought fees for securing the $9,060.49 in past-due PTD and PTD supplemental benefits and fees for the "present value of all future PTD and PTD supplemental benefits," alleged to be $532,810.88. The court awarded fees based on calculations that included the value of future benefits, because Lawyer "was responsible for reinstatement of the PTD and PTD supplemental benefits." The court, however, specifically found that the E/C had never intended to permanently suspend payment of the benefits. The E/C appealed. The First DCA reversed and remanded, stating: "Although the JCC correctly determined that Claimant’s counsel was entitled to attorney’s fees for obtaining reinstatement of PTD and PTD supplemental benefits, the JCC erred in considering the value of future benefits in determining the amount of fees due." (Emphasis by court.) Where an E/C does not intend to permanently suspend PTD and PTD supplemental benefits, only the value of past due benefits should be considered in determining the amount of fees.
Court erred in denying attorney's fee award because claimant prevailed on statute of limitations defense rather than merits. Ultimate Makeover Salon & Spa, Inc. v. DiFrancesco, 41 So.3d 335 (Fla. 4th DCA 2010). Plaintiff sued Defendants for wages. Defendants' motion for summary judgment based on the statute of limitations was granted, and Defendants moved for prevailing party fees under F.S. 448.08 (2007). The court denied the fee motion, determining that fees "should not be assessed because '[t]ermination of a case based on the statute of limitations while final, and appropriate, is different from a termination on the merits.'” The Fourth DCA reversed and remanded. Although the trial court has discretion in deciding whether to award fees under F.S. 448.08, it had "misconstrue[d] the scope of its discretion." The appeals court cited cases supporting an award of fees when an employer prevails on a statute of limitations defense in this type of suit.
Fee award may include contingency risk multiplier for paralegal fees included in award. State Farm Mutual Auto. Ins. Co. v. Edge Family Chiropractic, P.A., 41 So.3d 293 (Fla. 1st DCA 2010). Plaintiffs prevailed at trial in one case and obtained favorable settlements in 2 other county court suits involving payment for personal injury protection ("PIP") benefits. Pursuant to F.S. 627.428 the county court awarded attorney's fees, which included paralegal time. The court applied a contingency risk multiplier to the entire award, including the paralegal time. The award was affirmed on appeal, and the insurer then petitioned for a writ of certiorari. The First DCA denied the petition. Whether a multiplier may be applied to paralegal fees was "an issue of first impression." The court ruled that application of a contingency risk multiplier to the paralegal fees was permissible. The court viewed this decision as providing encouragement for lawyers to use lower-cost paralegal time in providing legal services to their clients. The court stated: "[B]ecause the paralegal’s work is part of the legal services provided to the client, there is no principled reason to treat paralegal fees any different from attorney’s fees in regards to the application of the multiplier."
Court erred in ruling that as matter of law it could not award fees for litigating amount of fees in divorce case. Schneider v. Schneider, 32 So.3d 151 (Fla. 4th DCA 2010). In a hotly litigated divorce case Wife appealed an order awarding attorney's fees arising out of a post-judgment proceeding in which the court declined to award fees for litigating the motion for fees. Specifically, the court declined to award Wife fees for litigating the reasonableness and amount of the fee award "as a matter of law." The Fourth DCA reversed, holding "that awarding fees for fee litigation in a marital dissolution case falls within the discretion of the trial court." The court concluded that State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830 (Fla. 1993), "does not apply to attorney's fees awarded in dissolution proceedings pursuant to section 61.16, Florida Statutes." (Palma decided that in an action for fees in insurance cases under F.S. 627.428, the statute permits an award of fees for litigating the entitlement to, but not amount of, fees.) The court noted its disagreement with Wight v. Wight, 880 So.2d 692 (Fla. 2d DCA 2004), but did not certify conflict.
Party in divorce case may be awarded appellate attorney's fees for litigating amount of temporary fees to be paid by other party. Baker v. Baker, 35 So.3d 76 (Fla. 2d DCA 2010). The court awarded $7500 in temporary fees to Wife in a divorce case. Husband appealed. He did not dispute Wife's need and his ability to contribute to her fees, but challenged the lack of evidence to support the court's determination as to the amount of temporary fees and its failure to make findings as to the reasonableness of an hourly rate and the number of hours expended. The Second DCA reversed because Wife "failed to present competent, substantial evidence as to the reasonableness of the amount" and remanded for further proceedings. The court also addressed Wife's motion for appellate attorney's fees pursuant to F.S. 61.16 (2009). Husband contended that "a litigant cannot obtain attorney's fees for litigating the amount of fees." The court disagreed, distinguishing State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830, 833 (Fla. 1993), and Wight v. Wight, 880 So.2d 692 (Fla. 2d DCA 2004). Wight applied Palma to a post-dissolution proceeding. The court declined to extend Wight to temporary fees awards. Section 61.16 is to be liberally construed, and it helps assure that the needy party will not be disadvantaged in the litigation due to an inferior financial position.
Second DCA reminds lawyers that attorney's fee awards ordinarily may not include payment for lawyers' travel time. Stanton v. Stanton, __ So.3d ___ (Fla. 2d DCA, No. 2D10-919, 12/10/2010), 2010 WL 5018361. In a divorce case Husband appealed a non-final order that awarded fees to Wife. Because the order did not contain findings regarding reasonableness of the hourly rates and time spent, the appeals court reversed and remanded. The court added this caution about inclusion of travel time in fee awards: "[A]ny award of fees should not include the travel time of the attorneys absent proof that a competent local attorney could not be obtained to complete the work." (Citation omitted.)
Matrimonial court did not err in awarding attorney's fees due to one party's conduct, despite parties' later settlement "waiving" claim to fees. Gottfried v. Kutner Law Firm, 34 So.3d 56 (Fla. 3d DCA 2010). During the trial of a divorce case, Husband left the country with marital assets. He returned 4 months later. Wife sought fees for the work "attributable to attempting to obtain the husband’s return to this jurisdiction and completing the dissolution proceedings." The court orally ruled that Husband would be ordered to pay the fees. Husband and Wife subsequently settled the case without their counsel and entered into a marital settlement agreement providing that "each party would be responsible for his or her own attorney’s fees and costs." The court approved the settlement agreement except for the fees-and-costs provision, ruling that it would "assess attorney's fees against the husband in accordance with its earlier oral pronouncement, because of the husband’s absenting himself from the jurisdiction." The court ordered Husband to pay more than $90,000 to Wife's former law firm. The Third DCA affirmed. "[T]he husband absconded in midtrial, taking with him some of the marital assets, and was gone for four months. This was most definitely sanctionable behavior, and the trial court ordered that the husband would be sanctioned in the form of attorney’s fees. The husband and wife later entered a marital settlement agreement, and in effect, asked the court to withdraw its earlier oral announcement assessing attorney’s fees against the husband as a sanction. Whether to relieve the husband of sanctions was a matter addressed to the discretion of the trial court. We see no abuse of discretion in the trial court’s imposition of attorney’s fees in accordance with its earlier oral announcement."
Court erred in awarding attorney's fees to wife in dissolution of 14-month marriage that went to trial over claim for permanent alimony. Greenwald v. Rivkind-Greenwald, 31 So.3d 250 (Fla. 3d DCA 2010). Fourteen months after marriage Husband and Wife separated to pursue divorce. Wife sought permanent alimony, alleging that Husband had induced her to quit a lucrative job. The court declined to order permanent alimony, but did award $65,000 in attorney's fees to Wife. The Third DCA reversed. "Given the short-term nature of the marriage, the almost total lack of any marital assets, and the fact that the parties’ property was almost all premarital in nature, there were few issues in the case, other than discovery and the wife’s claim for alimony. Adding this up, (1) this was a claim for permanent alimony in a short-term marriage, which is almost never successful; (2) the case went to trial solely on the permanent alimony issue; (3) the basis of the claim was false, as outlined above; and (4) the wife turned down a favorable opportunity to settle the case before trial. Attorney’s fees should not have been awarded to the wife."
Judge in divorce case erred by ordering one spouse to pay attorney's fees of other, where parties were equally position financially. Kouzine v. Kouzine, 44 So.3d 213 (Fla. 5th DCA 2010). In a divorce case the court ordered Former Husband to pay one-half of Former Wife's attorney's fees. Former Husband appealed, contending that the court abused its discretion in entering the order "after finding that the parties stood on equal financial footing." Agreeing, the Fifth DCA reversed the fee award. "An award of attorney's fees in a dissolution proceeding depends upon the relative financial circumstances of the parties pursuant to [F.S. 61.16]. Section 61.16(1), Florida Statutes (2009), provides that, after considering the financial resources of both parties, the court may order one party to pay the other's reasonable attorney's fees and costs. . . . The proper inquiry is whether one spouse has a need for such fees and the other has the ability to pay them. Lovell v. Lovell, 14 So.3d 1111, 1116-17 (Fla. 5th DCA 2009). Because the trial court found the parties to be equally positioned financially, it was an abuse of discretion to award attorney's fees. . . ." (Citations omitted.)
Court abused its discretion in not awarding attorney's fees to wife in divorce case, where it would result in inequitable diminution of her assets. Conlan v. Conlan, 43 So.3d 931 (Fla. 4th DCA 2010). Wife and Husband appealed the final judgment in a divorce case. Wife argued that the court abused its discretion in denying her request for fees where there was a large disparity between their incomes, Husband had the ability to pay, and it would result in inequitable diminution of her equitable distribution. Husband argued that Wife already received $117,000 in temporary fees and that Wife had sufficient assets to pay her own fees. Agreeing with Wife, the Fourth DCA reversed. "It is appropriate for a court to award attorney’s fees to avoid an inequitable diminution of the spouse’s share of equitable distribution." (Citation omitted.) Husband had the ability to pay, and Wife would not be able to pay her outstanding fees without substantially depleting her overall equitable distribution.
Court erred by assessing costs against State Attorney's Office as sanction for criminal case discovery violation. State v. Nelson, 27 So.3d 758 (Fla. 3d DCA 2010). The court entered an order taxing costs against the State Attorney's Office as a sanction for a discovery violation in a criminal case. On petition by the state, the Third DCA quashed the order. "The trial court does not have inherent authority to assess costs against the State Attorney’s Office in criminal cases." (Citations omitted.)
Florida law does not provide for court-appointed counsel, or fee payment, in parental rights termination cases where parent has voluntarily surrendered rights to child. Justice Administration Comm'n v. Goettel, 32 So.3d 786 (Fla. 2d DCA 2010). Lawyer was appointed to represent Mother at the beginning of dependency proceedings. Mother signed a written surrender of the child 16 months later and petitioned for termination of parental rights. The court appointed Lawyer to represent Mother through the termination proceedings. When the case was over Lawyer sought payment from the Justice Administration Commission ("JAC") for his work in both cases. JAC paid him for the dependency case but not for the termination case. Lawyer filed a motion for compensation, and the court ordered JAC to pay Lawyer for the termination proceeding as well. The Second DCA reversed. F.S. 29.007 (2008) authorizes payment for a lawyer's services only when the client has a right to court-appointed counsel, and "Florida law does not provide for court-appointed counsel in termination proceedings when the parent has voluntarily surrendered her rights to the child."
Court-appointed counsel for no-show father in termination of parental rights action is not entitled to fees, per First DCA. Justice Administrative Comm'n v. Risen, 44 So.3d 1264 (Fla. 1st DCA 2010). Lawyer was appointed by the court to represent Father in a termination of parental rights proceeding. Father failed to attend any stage of the proceeding. Lawyer sought fees from the Justice Administrative Commission ("JAC"), and the court ordered JAC to pay the fees. The First DCA quashed the order. Because Father failed to attend any stage of the termination proceeding, he had no statutory right to publicly funded counsel.
Court erred in ordering JAC to pay lawyer's fee where JAC objected and court did not hold hearing on objection. Justice Administrative Comm'n v. Gayden, 28 So.3d 162 (Fla. 5th DCA 2010). The court appointed Lawyer to represent Mother in a dependency proceeding. The Justice Administrative Commission ("JAC") paid Lawyer's bill of $1000. The Department of Children and Families then filed a petition to terminate Mother's parental rights. Mother failed to appear at the termination hearing, and at the hearing the court appointed Lawyer to represent Mother. The court terminated Mother's parental rights. Lawyer billed JAC for her representation of Mother. JAC objected, "asserting that it did not have statutory authority to pay because the parent must be present in the court at the time counsel is appointed." At JAC's suggestion, Lawyer filed a petition for compensation in circuit court. The petition noted JAC's objection and requested a hearing. The court did not hold a hearing but instead entered an order directing JAC to pay Lawyer's bill. JAC petitioned for a writ of certiorari. The appellate court quashed the order, which "should not have been entered without giving JAC the opportunity to be heard on its objection." The court further stated: "We also direct the circuit court’s attention to the recent opinions of Justice Administrative Commission v. Harp, 2009 WL 5150300 (Fla. 5th DCA Dec. 31, 2009) (holding that circuit court lacked statutory authority to appoint counsel for mother who voluntarily executed a written surrender of parental rights; JAC not required to pay counsel for mother’s legal representation at the termination of parental rights proceeding under these facts), and Justice Administrative Commission v. Berry, 5 So. 3d 696 (Fla. 3d DCA 2009) (holding circuit court departed from essential requirements of law in requiring JAC to pay attorney’s fees for counsel appointed to represent fathers in termination proceedings where fathers did not appear at the proceedings, thereby consenting to the termination of their parental rights, and their indigency could not be determined)." Note: See also Justice Administrative Comm'n v. Biecker, 33 So.3d 827 (Fla. 5th DCA 2010).
All child support cases eligible for Title IV-D services are Title IV-D cases for attorney's fee purposes, even if Dept. of Revenue is not a party. Spano v. Bruce, __ So.3d ___, 35 Fla.L.Weekly D1811(Fla. 3d DCA, No. 3D07-3327, 8/11/2010), 2010 WL 3154873. A paternity action was settled in 2001. Mother later moved for modification of child support. State Attorney's Office represented Father. Department of Revenue was not a party. The court ruled for Father. The Third DCA affirmed. Under F.S. 61.16 (2009) fees may only be assessed against the non-prevailing obligor. Father was the prevailing obligee. The issue presented was "whether the presence of the Department of Revenue, as the state agency enforcing the child support payment of the mother, and the State Attorney’s office as the legal services provider, automatically converts this case into a Title IV-D case." The court concluded that it did. "The State Attorney’s Office represented the father in his defense of the mother’s child support proceeding, a right available to any parent, irrespective of whether the parent is indigent. This representation automatically converted this case into a Title IV-D case. . . . Thus, the trial court was correct when it concluded that this was a Title IV-D case and that section 61.16 precluded the mother’s claim for attorney’s fees against the father."
Cases regarding application of Fla.R.Civ.P. 1.525 included: Motion to determine attorney's fees not untimely though filed 11 months after final judgment that reserved jurisdiction to determine amount of fees. Ramle International Corp. v. Greens Condominium Ass'n, Inc., 32 So.3d 647 (Fla. 3d DCA 2010). In June 2007 a final summary judgment was rendered for Appellant. The court awarded Appellant attorney's fees and costs and reserved jurisdiction to determine the amounts. Eleven months later Appellant filed its motion to determine fees and costs. Appellee contended that the motion was untimely because it was not filed within the 30-day period mandated by Fla.R.Civ.P. 1.525. The court agreed and denied the motion as untimely. The Third DCA reversed. Quoting from Amerus Life ins. Co. v. Lait, 2 So.3d 203, 207 (Fla. 2009), the court pointed out that the Florida Supreme Court has held that Rule 1.525 "'does not apply when the trial court has determined entitlement to attorneys' fees and costs in its final judgment, but reserves jurisdiction only to determine the amount in attorneys' fees and costs that is owed.'" Further, "the prevailing party’s entitlement to attorneys’ fees had already been determined, and the trial court merely reserved jurisdiction to determine the amounts."
30-day deadline of Fla.R.Civ.P. 1.525 for seeking fee awards applies when party is dropped from suit per Fla.R.Civ.P. 1.250(b). Siboni v. Allen, __ So.3d ___ (Fla. 5th DCA, No. 5D10-1167, 12/23/2010). Plaintiffs sued several defendants for an accounting. Plaintiffs filed and served a "notice of voluntary dismissal" to dismiss the action against one defendant ("Defendant"). More than 30 days later Defendant filed a request for fees. The court denied the fee request as untimey. The Fifth DCA affirmed. The document labeled "notice of voluntary dismissal" should have been a notice of dropping party filed under Fla.R.Civ.P. 1.250(b). The issue before the court was whether the 30-day time period for serving motions for fees established by Fla.R.Civ.P. 1.525 applies to a notice of dropping parties. The court concluded that it did. Not applying the time limit "could result in a party litigating for years with a remaining party with the specter of an unknown award of attorney's fees and costs unresolved. This is neither an efficient nor reasonable method of conducting litigation and contrary to the stated intention of rule 1.525. Accordingly, we hold that a party dropped from litigation under rule 1.250(b) is subject to the time limitation contained in rule 1.525 governing service of a motion seeking a judgment for costs and attorney's fees."
Motions for attorney's fees in guardianship matters are subject to 30-day time limit in Fla.R.Civ.P. 1.525. Price v. Austin, 43 So.3d 789 (Fla. 1st DCA 2010). The person appointed guardian as a result of a proceeding in which her mother was determined to be incapacitated moved for attorney's fees. Guardian's motion was denied. The First DCA affirmed. The order determining incapacity was entered in July 2008. Guardian did not serve her motion to approve payment of attorney's fees until September 2009. Fla. Probate R. 5.025(d)(2) provides that once a proceeding under the probate rules becomes adversarial it is conducted under the rules of civil procedure. Fla.R.Civ.P. 1.525 requires a motion for attorney’s fees to be filed "no later than 30 days after filing the judgment. . . .'"
Fee cases concerning the “prevailing party” standard included: A party may be the "prevailing party" for attorney's fee award purposes even before underlying litigation is concluded. Black Diamond Properties, Inc. v. Haines, 36 So.3d 819 (Fla. 5th DCA 2010). Plaintiff sued Defendant alleging misleading advertising, deceptive and unfair trade practices, and conversion. Plaintiff later voluntarily dismissed all claims pursuant to Fla.R.Civ.P. 1.420(a)(1). Defendant’s motion for prevailing party attorney's fees (and costs) was denied. The Fifth DCA affirmed in part and reversed in part. "[A] a defendant is a prevailing party when the plaintiff voluntarily dismisses an action pursuant to rule 1.420(a)(1) and, therefore, the defendant is entitled to recover attorney's fees under a prevailing party attorney's fee statute." (Citation omitted.) Defendant was entitled to prevailing party fees on its misleading advertising claim, but not on its deceptive trade practices act claim because that statute requires an entry of "judgment" before fees can be awarded, and no judgment is entered after a voluntary dismissal. Plaintiff argued that Defendant cannot be a "prevailing party" because the underlying litigation had not yet been concluded when the fee award was entered. The appeals court rejected that argument, citing Long v. Martin, 410 So.2d 607 (Fla. 5th DCA 1982) (one plaintiff among several voluntarily dismissed claim against defendant while other plaintiffs continued in case; Fifth DCA upheld award of costs to defendant against dismissing plaintiff).
Dismissal without prejudice, though not on merits, can support award of prevailing party attorney's fees. Valcarcel v. Chase Bank USA NA, __ So.3d ___, 35 Fla.L.Weekly D2589 (Fla. 4th DCA, No. 4D10-379, 11/24/2010), 2010 WL 4740386. Bank sued Defendants in a foreclosure action. The suit was dismissed without prejudice because of misconduct by Bank's counsel. Defendants moved for fees as the prevailing party and under Fla.R.Civ.P. 1.420(d). The court denied the motion, concluding that the dismissal order was not a judgment. The Fourth DCA reversed. The order of dismissal without prejudice was a final appealable order. The trial court also erred in denying the motion for based on its finding that the order was not a "judgment." The court quoted the Second DCA: "Since rule 1.420(d) contemplates both voluntary and involuntary dismissals, we see no reason why this interpretation should not be applied to a situation involving an involuntary dismissal of a plaintiff’s case." Stout Jewelers, Inc. v. Corson, 639 So.2d 82, 84 (Fla. 2d DCA 1994). Additionally, Defendants were the prevailing party and so were entitled to fees. (Citations omitted.)
Court erred in not awarding fees even though plaintiff prevailed on only a fraction of unpaid commission claim. Langford v. Paravant, Inc., __ So.3d ___, 35 Fla.L.Weekly D2243 (Fla. 5th DCA, Nos. 5D08-4320, 5D09-2143, 10/8/2010), 2010 WL 3927180. Plaintiff sued his former employer for commissions. He was awarded "only a fraction of the total amount of commissions he was owed." The trial court’s denial of his motion for fees was reversed on appeal. "Clearly, [Plaintiff] is entitled to fees pursuant to [F.S. 448.08 (2008)], which allows awards of attorney’s fees and costs to successful litigants in actions for unpaid wages."
Court has "no discretion" to refuse to enforce prevailing party fee provision in breach of contract case. Point East Four Condominium Corp., Inc. v. Zevuloni & Associates, Inc., __ So.3d ___, 35 Fla.L.Weekly D2691 (Fla. 4th DCA, No. 4D09-3221, 12/8/2010), 2010 WL 4962853. Condo Association hired Public Adjuster to handle a casualty insurance claim. No benefits were recovered by Condo Association, but Public Adjuster sued for a fee. The suit was dismissed for failure to state to cause of action for breach of contract. The court denied Condo Association's motion for fees, "finding neither party to be the prevailing party." The Fourth DCA reversed. "Courts have no discretion to decline to enforce this kind of contractual attorneys fees provision. [Citation omitted.] When one party loses in an action for breach of contract, the adverse party is the prevailing party. [Citation omitted.] . . . The trial judge had no choice but to grant the motion for fees and proceed to fix the amount of a reasonable fee."
Discharge in bankruptcy that prevents state court claim from going forward cannot support "prevailing party" attorney's fees award. United States v. Morrison, 46 So.3d 1064 (Fla. 1st DCA 2010). Debtors were sued by the United States ("USA") in a mortgage foreclosure action. They were awarded prevailing party attorney's fees. The appeals court reversed and remanded for entry of judgment for USA. Accordingly, the fee award was reversed as well. Debtors appealed, contending that they prevailed on Count II in the case, in which USA sought damages on 2 promissory notes secured by the mortgage. Prosecution of this count had been enjoined when Debtors filed bankruptcy and were granted a discharge. This argument was unsuccessful. "The discharge in bankruptcy court did not transform the debtors into the 'successful party' in pending litigation in state court to collect on the debt."
Court correctly applied prevailing party standard, rather than F.S. 61.16, in awarding fees in family law case where marital settlement agreement contained prevailing party provision. Vitale v. Vitale, 31 So.3d 970 (Fla. 4th DCA 2010). Husband and Wife entered a mediated marital settlement agreement in their divorce case. The agreement contained a prevailing party attorney's fee provision stating: "In the event of a breach of this Agreement by either party, the prevailing party shall be entitled to reasonable attorney's fees and court costs." Husband filed an Amended Supplemental Petition for Modification seeking to change the provisions regarding custody or visitation. Husband also filed an Emergency Motion for Christmas Visitation. The court denied the Emergency Motion for Christmas Visitation. Subsequently Husband voluntarily dismissed his Amended Supplemental Petition for Modification. Wife sought attorney's fees relating to both of Husband's filings pursuant to the prevailing party provision in the agreement. The court awarded fees and costs to Wife in both matters. The Fourth DCA affirmed the award of fees relating to the Amended Supplemental Petition for Modification, but reversed the award relating to the Emergency Motion for Christmas Visitation. "'[I]n cases involving a marital settlement agreement with a prevailing party provision, section 61.16, Florida Statutes, cannot be used as a basis for an award of attorney’s fees.' [Citations omitted.] Instead, the provisions in the marital settlement agreement awarding attorney’s fees are generally enforced. . . . In this case, under the terms of the attorney’s fee provisions incorporated into the final judgment, the prevailing party standard applies, and it is applicable only to actions brought in the event of a breach of the agreement." Thus, the trial court correctly awarded fees to Wife after Husband's voluntary dismissal of the Amended Supplemental Petition for Modification, because that petition sought relief based on claims of default and breach of the marital settlement agreement. The order awarding fees relating to the Emergency Motion for Christmas Visitation was reversed because that motion was not based on alleged default or breach of the agreement.
Insurance cases involving fee issues included: After PIP benefits are exhausted, suit for attorney's fees related to reduced or denied benefits may no longer be maintained. Sheldon v. United States Auto. Ass'n, __ So.3d ___ (Fla. 1st DCA, No. 1D10-0777, 12/28/2010). Doctor took an assignment of personal injury protection ("PIP") insurance benefits from a patient injured in an accident. Insurer paid some of Doctor's claims but reduced others as being in excess of the usual and customary reimbursement level. Doctor sued Insurer seeking benefits allegedly due as well as interest, penalties, and, pursuant to F.S. 627.428, attorney's fees. After the complaint was filed but before it was served, the $10,000 PIP policy limits were exhausted by Insurer’s payments. Insurer moved for summary judgment, which was granted. The county court certified the following question to the First DCA: "After PIP benefits are exhausted, is a plaintiff barred from filing or maintaining a previously filed lawsuit against an insurance company to pursue a claim solely for penalties, interest and concomitant attorney’s fees on benefits that were reduced or denied prior to the exhaustion of benefits?" Noting that this was a question of first impression in the District Courts of Appeal, the First DCA answered in the affirmative and affirmed the lower court's decision. "The reason an insurer that has paid out the policy limits may not be held liable on a claim for disputed benefits is that it has already fulfilled its contractual obligation to pay a given amount of benefits, and it cannot be required to pay more than it agreed to pay under the policy. Once the suit for disputed benefits dissolves, there can be no judgment that the disputed benefits are due. It therefore follows that, if disputed benefits cannot be deemed due, they cannot be deemed overdue. And without overdue benefits, there is nothing on which to base an award of interest, penalties or attorney fees."
Second DCA discusses when attorney's fees may be awarded to "force" insurer back to bargaining table in dispute with insured. Hill v. State Farm Florida Ins. Co., 35 So.3d 956 (Fla. 2d DCA 2010). Insured sued Insurer for breach of contract in connection with fire damage to Insured's home. That dispute was resolved through the appraisal process. The court granted summary judgment for Insurer on Insured's claim for attorney's fees under F.S. 627.428. The Second DCA reversed and remanded for a determination of "whether [Insured] filed her lawsuit in good faith in order to force [Insurer] to adjust the claim or whether she filed suit merely as an effort to seek attorneys' fees for the normal process of adjusting the claim." The court stated the operative issue as: "If she filed her lawsuit in good faith in order to force [Insurer] to adjust the claim, then she is entitled to attorney's fees. If not, then [Insurer] is not liable for the attorney's fees she incurred as a result of filing suit." The court explained the scope of the award that may be available on remand. "[I]f if the trial court determines that [Insured] is entitled to an award of attorneys' fees, we observe that the scope of the remedy we envisioned in Goff [v. State Farm Florida Ins. Co., 999 So.2d 684 (Fla. 2d DCA 2008)] has clearly been misconstrued by [Insured]'s attorneys in this case. The fees we envisioned in Goff were the fees necessary to force [Insurer] back to the negotiations table to resolve the dispute within the terms of the insurance contract. The appraisal process, for example, is not legal work arising from an insurance company's denial of coverage or breach of contract; it is simply work done within the terms of the contract to resolve the claim. Thus, except under the most extraordinary of circumstances, we do not envision fees for such work to be recoverable under the rule announced in Goff. Instead, the fees should normally be limited to the work associated with filing the lawsuit after the insurance carrier has ceased to negotiate or has breached the contract and the additional legal work necessary and reasonable to resolve the breach of contract."
Third DCA reduces award of attorney's fees to insured who prematurely filed suit in connection with appraisal. Travelers of Florida v. Stormont, 43 So.3d 941 (Fla. 3d DCA 2010). Insured and Insurer disagreed over the value of a stolen car. Insurer demanded appraisal. Insured did not respond and, instead, sued Insurer for payment of the claim. The court compelled appraisal. Insured objected to Insurer's appraiser as unqualified, and filed a motion seeking appointment of a new appraiser or the striking of the appraisal demand. The court denied the motion to strike, and appointed an umpire. Insurer failed to pay its half of the umpire's fee. The umpire rendered an appraisal award. Insurer failed to pay. Insured filed a motion asking the court to enter judgment for the award plus costs, interest, and attorney's fees. The court entered judgment for almost $135,000 in fees, which included a 2.5 multiplier. The Third DCA affirmed Insured's entitlement to fees under F.S.. 627.428 (2005), but reduced the amount. The court agreed that Insured's filing of suit "was premature. Once the insurer demanded appraisal, the insured was required to comply with the appraisal clause. Proceeding to court was not justified." As a result, Insured was entitled to fees only from the point where he moved for judgment in accordance with the appraiser's award. The court also rejected the use of a 2.5 multiplier.
Error to award attorney's fees against insurance agent under F.S. 627.428 because agent was not an "insurer." Underwood Anderson & Associates, Inc., v. Lillo's Italian Restaurant, Inc., 36 So.3d 885 (Fla. 1st DCA 2010). Insured Restaurant filed a flood insurance claim. Insurer paid the policy limits of $150,000, but Insured thought it was covered for the full amount of the loss of $275,600. Insured sued its insurance Agent for negligent procurement of coverage. The jury found Agent 90% negligent in reducing Insured's flood coverage and awarded damages to Insured. Insured moved for fees against Agent under F.S. 768.79 (2004) (offer of judgment statute) and F.S. 627.428(1) (2004) (fee awards "against an insurer" when insured prevails on suit regarding policy). The court awarded fees under both statutes. Agent appealed the fee awarded under section 627.428. The First DCA reversed. Agent was not "an insurer" as required by the statute. The court stated: "[A] strict construction of section 627.428 excludes the agent from liability for attorney’s fees. This is consistent with what the courts have often stated to be the purpose of the attorney’s fee statute, which is to encourage insurance companies to pay when they are presented with valid claims and, failing that, to compensate insureds that are forced to litigate their contracts with improperly recalcitrant insurance companies. . . . An agent who is not a party to an insurance contract has no authority to pay on the policy; thus, the purpose of the statute is not served by making agents liable for fees incurred in enforcing the policy." Note: The Fifth DCA held that "section 627.428(1) does authorize an award of attorney's fees against a surety that has issued a bond pursuant to section 320.27(1)." Snow v. Jim Rathman Chevrolet, Inc., 39 So.3d 368 (Fla. 5th DCA 2010).
Fee award under F.S. 627.428 is not "covered claim" under FIGA Act, per Second DCA. Florida Ins. Guaranty Ass'n v. Petty, 44 So.3d 1191 (Fla. 2d DCA 2010). Insured homeowners' property was damaged by a hurricane. After appraisal, Insurer pad the appraisal award but then became insolvent. The Florida Insurance Guaranty Association ("FIGA") was substituted as defendant. The only issue remaining was whether FIGA could be required to pay Insureds' attorney's fees that were incurred in the litigation with Insurer. The trial court ruled that FIGA must pay the fees because Insurer's payment of the appraisal award "constituted a confession of judgment by the insurer and thus invoked the mandatory attorney's fee provisions of section 627.428." Under F.S. 631.57(1), "FIGA was 'obligated to the extent of the covered claims' that existed before the adjudication of insolvency." The Second DCA reversed. FIGA is a statutory creation and the statute defines the extent of its obligations. In order to be a "covered claim" for purposes of F.S.. 631.57(1), "'the claim must both 'arise out of' the insurance policy and be 'within the coverage of' the insurance policy.'" Florida Ins. Guaranty Ass'n v. All the Way with Bill Vernay, Inc., 864 So.2d 1126, 1129 (Fla. 2d DCA 2003). The appeals court concluded that the fee award was not a part of the coverage provided by the policy and thus was not a "covered claim." The court certified conflict with the Third DCA's decision in Florida Ins. Guaranty Ass'n v. Soto, 979 So.2d 964 (Fla. 3d DCA 2008).
Second DCA reviews the law on attorney's fees under F.S. 627.428 when insurer pays policy proceeds after insured files suit. Beverly v. State Farm Florida Ins. Co., __ So.3d ___, 35 Fla.L.Weekly D2373 (Fla. 2d DCA, No. 2D09-2317, 10/27/2010), 2010 WL 4226548. Insureds submitted a claim to Insurer for hurricane damage. Insureds sued Insurer 6 weeks after the loss. The matter went to appraisal, and Insurer paid the awards. Insureds sought attorney's fees under F.S. 627.428 (2004). The court granted summary judgment for Insurer. The Second DCA reversed and remanded. After "surmis[ing]" that the underlying suit was "about attorney's fees," the appellate court discussed its prior cases concerning entitlement to section 627.428 attorney's fees when an insured has filed suit against an insurer prior to the insurer's payment of the claim. After reviewing Goff v. State Farm Florida Ins. Co., 999 So.2d 684 (Fla. 2d DCA 2008), Clifton v. United Casualty Ins. Co. of America, 31 So.3d 826 (Fla. 2d DCA 2010), and Hill v. State Farm Florida Ins. Co., 35 So.3d 956 (Fla. 2d DCA 2010), the court concluded that "we must reverse because material questions of fact remain as to whether [Insureds] were forced to file suit to resolve their claim under the insurance policy."
Insureds entitled to "modest" fee award after defeating insurer's petition seeking itemized appraisal. Pineda v. State Farm Florida Ins. Co., 47 So.3d 890 (Fla. 3d DCA 2010). Insureds filed a claim after incurring hurricane damage. Insurer petitioned for appraisal and requested that the umpire provide an itemized appraisal. Insureds objected to the request for a line-by-line appraisal, and the court did not require it. Insureds’ request for attorney’s fees under F.S. 627.428 was denied. The Third DCA addressed whether Insureds were entitled to a fee award for "successfully defeating [Insurer]’s request that the trial court direct the umpire to provide an itemized appraisal." The court reversed and remanded for a "modest" fee award. "It is only necessary for us to decide whether resolution of the issue presented by [Insureds] declaratory counterclaim was reasonably necessary in connection with the ongoing appraisal. We hold that it was. The request for a line item appraisal was initially raised by [Insurer] and [Insureds] reasonably responded with their request for a declaratory judgment. They attained a benefit by the trial court’s ruling. The appraisal award was in favor of [Insureds] and [Insurer] paid the award." (Citation omitted.)
Fee cases applying F.S. 57.105 sanctions included: Revisions to F.S. 57.105, concerning attorney's fees awards as sanctions, effective July 1, 2010. F.S. 57.105, authorizing the award of attorney's fees as sanctions for raising unsupported claims or defenses, was amended effective July 1, 2010. The Florida House of Representatives "Session Summary 2010" described the revisions: "CS/HB 449 amends s. 57.105, F.S., to provide an exception to the imposition of sanctions against a represented party, and to limit the authority of the court to impose sanctions on its own motion. Under the bill, represented parties are not subject to monetary sanctions for claims or defenses that would not be supported by the application of then-existing law to the material facts. CS/HB 449 also reduces the court’s ability to impose sanctions by providing that a court may only award monetary sanctions on its own initiative if the sanction is ordered before a voluntary dismissal or settlement of the claims by the party to be sanctioned." The Florida Supreme Court also amended the Florida Rules of Appellate Procedure to "harmonize the rules with section 57.105." The Court's action was based on the prior version of the statute, but the statutory revisions do not appear to be inconsistent with the rules revisions. In re: Amendments to the Florida Rules of Appellate Procedure, 41 So.3d 885 (Fla. 2010).
First DCA imposes 57.105 fees against party and his lawyer who sought certiorari review after unsworn motion to disqualify JCC was denied. Skarka v. Lennar Homes, Inc./Broadspire, 29 So.3d 1170 (Fla. 1st DCA 2010). Represented by Lawyer, Claimant filed a motion to disqualify the Judge of Compensation Claims ("JCC") in a workers' compensation case. The motion was not sworn to, as required by Fla.Admin.Code R. 60Q-6.126 and Fla.R.Jud.Admin. 2.330(c)(3) and sought relief in the form of a blanket disqualification of the JCC. After the motion was denied, Claimant petitioned the First DCA for a writ of prohibition. The appeals court denied the petition and also imposed appellate attorney's fees against Claimant and his lawyer under F.S. 57.105(1)(b) (2008). After Claimant's untimely filing of a reply brief, the court issued an order to show cause why fees should not be imposed "because it appeared that the petition and briefs reflected a lack of knowledge of the rules of appellate procedure and case law, and failed to provide relevant information for this court’s review of the petition." The order identified 7 separate problems, and the court was wholly dissatisfied with Claimant's response. The court made it clear that it wished to see the fees assessed solely against Lawyer: "Although we would prefer to exclude [Claimant] from this sanction, section 57.105 does not authorize this court to fashion such a remedy. This cause is remanded to the JCC to determine a reasonable fee and whether [Claimant] should be accorded an opportunity to obtain conflict-free counsel."
Per Fourth DCA, party cannot rely on corporate veil to avoid being hit with appellate attorney's fee sanction under F.S. 57.105. Sullivan v. Sullivan, __ So.3d ___, 35 Fla.L.Weekly D2896 (Fla. 4th DCA, No. 4D10-331, 12/22/2010), 2010 WL 5174330. Former Husband was ordered to transfer certain commercial property to former Wife by a specified date. He did not, but he continued to collect rents from the property and deposit them in the bank account of a corporation he wholly owned. Wife moved to enforce the judgment and for contempt. Husband argued that the court lacked personal jurisdiction over the corporation that owned the property. The court found that Husband had complete control over the corporation and rejected his argument, ordering him to pay the rent money to Wife. Husband again failed to pay. At the contempt hearing Husband raised the same jurisdictional argument, to no avail. Husband was found in contempt. He appealed. The Fourth DCA affirmed and also imposed attorney's fees against Husband and his lawyer as a sanction under F.S. 57.105(1). Husband contended that he could not be in contempt because the corporation, not him individually, received the rental income. This argument failed. Husband was in "complete control" of the corporation. "'[E]quity will not allow a corporate veil to cover fraud or injustice, and to prevent such the corporate entity may be disregarded and the corporation and individual or individuals owning all of its stock and assets treated as identical.' Plank v. Arban, 241 So.2d 198, 200 (Fla. 4th DCA 1970)." The court ordered appellate fees to be paid in equal amounts by Husband and his lawyer.
F.S. 57.105 award of fees reversed in defamation case, where defendant's belief in her accusation was "completely unreasonable." Asinmaz v. Semrau, 42 So.3d 955 (Fla. 4th DCA 2010). Defendant falsely accused Plaintiff, a jeweler, of switching her diamonds for cubic zirconias. She accused Plaintiff during a heated exchange with him when she picked up her ring, which Plaintiff had repaired. Defendant reported the "theft" to the police. Several days later Defendant learned from the out-of-state jeweler who made the ring that the stones in the repaired ring were genuine. She informed the police, but not before a newspaper had published her accusations. "[A]s a result, [Plaintiff] lost all of his business and was forced to close his store." Plaintiff sued Defendant for defamation. Defendant moved for summary judgment and for fees pursuant to F.S. 57.105, asserting that "she believed the allegations she made to the police to be true and that she did not act with any malicious intent towards" Plaintiff. Both of Defendant's motions were granted. The Fourth DCA reversed the award of fees, agreeing with Plaintiff that Defendant could have acted with express malice because she made the police report "without any reasonable belief that a theft occurred." The court stated: "[T]he court abused its discretion in completely discounting the unreasonableness of her initial accusation in evaluating whether a justiciable issue was present. A defamation based upon a completely unreasonable belief, which the party knows is without foundation, may be sufficient to infer an intent to harm. Because the case was not completely without merit or contradicted by overwhelming evidence, given the inference which may be raised from the unreasonable belief by [Defendant] in the truth of her claims, the trial court abused its discretion in concluding that the standard of section 57.105 was met."
First DCA awards fees under F.S. 57.105 as sanction against parties and their counsel for filing appeal where they lacked standing. Martin County Conservation Alliance v. Martin County, Dept. of Community Affairs, __ So.3d ___, 35 Fla.L.Weekly D2765 (Fla. 1st DCA, No. 1D09-4956, 12/14/2010), 2010 WL 5072588. Two organizations ("Appellants") challenged county ordinances relating to a comprehensive growth plan. They lost, although the Administrative Law Judge ("ALJ") ruled that they had standing to bring the administrative challenge (see F.S. 168.3184(1)(a)). The First DCA dismissed Appellants’ appeal because they failed to demonstrate that they were "adversely affected" by the ALJ's order; thus, they "clearly" lacked standing to appeal. (See F.S. 120.68(1).) Appellants and counsel were ordered to show cause why they should not be sanctioned under F.S. 57.105(1). The First DCA subsequently held that the appeal ran afoul of F.S. 57.105(1) and imposed sanctions against Appellants and their counsel for two reasons. First, the appeals court awarded fees to intervenors under F.S. 120.595(5) after finding the appeal to be frivolous. "Because we have found that this appeal was frivolous, then by logical necessity, we must also conclude that this appeal was without merit under section 57.105, as that statute does not require a finding of frivolousness, but only a finding that the claim lacked a basis in 'material facts' or then-existing law." The court noted that "[a]ppellate standing is not equivalent to administrative standing. [Citations omitted.] . . . Appellants failed to demonstrate on appeal that they were adversely affected by the Agency's action; thus, they do not have standing to appeal the Agency's Final Order." Second, the appeal was "nothing more than an attempt to retry facts determined adversely to Appellants." The court closed its opinion with a warning to litigants and their lawyers to not pursue meritless positions, citing its " holding and admonition in de Vaux v. Westwood Baptist Church, 953 So.2d 677 (Fla. 1st DCA 2007), that ‘'[w]e again remind the bar that section 57.105 expressly states courts 'shall' assess attorney's fees for bringing, or failing to timely dismiss, baseless claims or defenses.’' (quoting Smith v. Gore, 933 So.2d 567, 568 (Fla. 1st DCA 2006))."
F.S. 57.105 fees should be awarded for assertion of unsupportable claim, regardless of whether party may prevail if case is refiled. Country Place Community Ass'n, Inc. v. J.P. Morgan Mortgage Acquisition Corp., __ So.3d ___ (Fla. 2d DCA, No. 2D10-569, 12/29/2010). J.P. Morgan sued to foreclose on a residential mortgage. Borrower asserted that Morgan lacked standing because it did not own the note and mortgage. Morgan did not produce evidence of ownership. Summary judgment was granted for Borrower. Borrower moved for fees under F.S. 57.105(1) (2008). The court, however, ruled that Borrower was not entitled to fees because it might still prevail if a new foreclosure action was filed. The Second DCA reversed. Under the post-1999 version of the statute Borrower was entitled to fees. "As amended, the statute authorizes 'an award of attorney's fees when a claim, pleading or other filing – as opposed to the entire case – is without merit.' Walker v. Cash Register Auto Ins. of Leon County, Inc., 946 So.2d 66, 70 (Fla. 1st DCA 2006); see also Boca Burger, Inc. v. Forum, 912 So.2d 561, 570 (Fla. 2005) ('[T]he statute no longer applies only to an entire action; it now applies to any claim or defense.')." (Emphasis in original.) The court concluded: "J.P. Morgan's mortgage foreclosure action was unsupported by the material facts necessary to establish the claim because J.P. Morgan lacked standing when the action was filed. For the purpose of awarding fees under section 57.105(1), it does not matter that J.P. Morgan may be able to prevail in a new action to foreclose."
Filing improper motion for rehearing results in imposition of F.S. 57.105 fees on court's own motion. Unifirst Corp. v. City of Jacksonville, unpublished disposition (Fla. 1st DCA, No. 1D09-0820, 3/25/2010), 2009 WL 4263860 (table). Appellant filed a "motion for rehearing or clarification and rehearing en banc." Appellee moved for attorney's fees under F.S. 57.105(4) (2009). Although the appeals court viewed Appellee's motion as untimely filed, it awarded fees on its own motion under F.S. 57.105(1). Appellant improperly reargued points raised in its brief and addressed during oral argument. Additionally, "Appellant compounded its error by including in its motion new arguments related to an issue already addressed in its briefs and at oral argument." Finally, "[i]n its motion for rehearing, Appellant also requested a written opinion, arguing that this court’s per curiam affirmance conflicts with an opinion issued by the Third District Court of Appeal and that clarification 'would provide a legitimate basis for Supreme Court review.' It is meritless to argue that an opinion which says nothing more than 'Affirmed' conflicts with a written opinion issued by another district court."
Court may award F.S. 57.105 fees on its own initiative as sanction without complying with 21-day notice provision. Koch v. Koch, 47 So.3d 320 (Fla. 2d DCA 2010). Former Wife moved to set aside a marital settlement agreement and sought financial information. Former Husband filed motions for protective order and fees. The court denied the motion to set aside the agreement, but "reserved jurisdiction, of its own volition, to consider an award of attorney's fees." Husband then moved to tax fees and costs, alleging that Wife's attempt to set aside the agreement was baseless but not stating the legal authority under which he was seeking fees. At the hearing the court stated that it was "inclined to" award fees to Husband and asked each side to submit a memo. Six weeks later the court awarded fees to Husband based on F.S. 57.105(1) Wife appealed, asserting that: (1) the court's order was contrary to Davidson v. Ramirez, 970 So.2d 855 (Fla. 3d DCA 2007), where the appeals court reversed a fee award under F.S. 57.105(1) because the court had effectively adopted a party's motion as its own and thus allowed the party to circumvent the statute's 21-day notice rule; and (2) he did not have proper notice that fees were at issue. The Third DCA rejected both contentions and affirmed. Davidson was inapplicable, as the court awarded fees on its own initiative. Furthermore, the court was not inclined to follow Davidson. "Accepting Davidson's reasoning at face value would mean that the trial court loses the ability to impose sanctions even when clearly warranted if a party files a section 57.105 motion for sanctions that fails to comply with the twenty-one-day notice requirement imposed on parties." (Emphasis by court.) The notice argument also failed. "[T]he statute does not require the trial court to give twenty-one days' notice and because due process does not require a court to provide the same degree of notice as a party before imposing sanctions. Reasonable notice is enough."
Motion for fees under F.S. 57.105 does not waive defense of lack of personal jurisdiction. Two Worlds United v. Zylstra, 46 So.3d 1175 (Fla. 2d DCA 2010). Plaintiff sued Defendant, a California resident, and others for allegedly posting defamatory statements on Defendant’s website. Defendant moved to quash service of process on the ground that he was not a Florida resident. Defendant sought fees under F.S. 57.105 (2007). Defendant also filed an amended motion to dismiss, asserting lack of personal jurisdiction, which was granted. Plaintiff appealed, contending that Defendant "waived his objection to personal jurisdiction by seeking affirmative relief by virtue of his motion for attorney's fees." The Second DCA disagreed and affirmed. A motion for attorney's fees under section 57.105 is "substantively defensive in nature" because it is filed to dissuade the opponent from pursing an allegedly frivolous claim. "A defendant waives an objection to personal jurisdiction by going beyond matters of defense and by seeking affirmative relief from the trial court. [Citation omitted.] But here, [Defendant] did not seek affirmative relief. Rather, [Defendant] filed a defensive motion for attorney's fees as sanctions against [Plaintiff] for filing suit against him when the Florida court lacked jurisdiction over him."
Fee cases involving fees in connection with offers of judgment included: Florida Supreme Court amends offer of judgment rule as it applies in vicarious liability situations. In re: Amendments to the Florida Rules of Civil Procedure, __ So.3d ___, 35 Fla.L.Weekly S494 (Fla., No. SC10-148, 9/9/2010), 2010 WL 3488983. The Florida Supreme Court, acting on a proposal from the Florida Bar Civil Procedure Rules Committee, amended the offer of judgment rule (Fla.R.Civ.P. 1.442). The amendment addresses situations in which a party is alleged to be "solely vicariously, constructively, derivatively, or technically liable." The Committee’s Report explained the purpose of the amendment: "In Lamb v. Matetzschk, 906 So.2d 1037 (Fla. 2005), the majority of the Justices concluded that rule 1.442(c)(3) requires that offers of settlement be differentiated between the parties, even if a party’s liability is purely vicarious. Justice Pariente, specially concurring, asked the Civil Procedure Rules Committee to 'study this matter further and reconsider modified amendments to rule 1.442(c).' 906 So.2d at 1044. Justice Lewis, in a separate concurring opinion, also asked the committee to 'consider modifications to its language to provide a system that is functional in cases such as this – where a vicariously liable party is involved in a case and an offer of settlement may be made.' Id. at 1045." The proposed amendment responded to those requests. As amended, Rule 1.442(c)(4) provides: "Notwithstanding subdivision (c)(3), when a party is alleged to be solely vicariously, constructively, derivatively, or technically liable, whether by operation of law or by contract, a joint proposal made by or served on such a party need not state the apportionment or contribution as to that party. Acceptance by any party shall be without prejudice to rights of contribution or indemnity." The amendment is effective on January 1, 2011.
Florida Supreme Court clarifies that joint offer of settlement or judgment conditioned on acceptance of all offerees is invalid and unenforceable. Attorneys' Title Ins. Fund, Inc. v. Gorka, 36 So.3d 646 (Fla. 2010). Resolving conflict among DCAs, the Florida Supreme Court addressed "whether a joint offer of settlement or judgment that is conditioned on the mutual acceptance of all of the joint offerees is valid and enforceable." The Court held that such a joint offer "is invalid and unenforceable because it is conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal. The conditional nature of the offer divests each party of independent control of the decision to settle, thereby rendering the offer of judgment invalid and unenforceable." Defendant was sued by 2 Plaintiffs. Defendant served a proposal for settlement on Plaintiffs pursuant to F.S. 768.79 (2004) and Fla.R.Civ.P. 1.442. The offer proposed payment of a specified amount to each plaintiff and stated that the offer could be accepted only if both Plaintiffs accepted; neither Plaintiff could independently accept the offer. Plaintiffs did not accept the offer. After judgment in its favor Defendant sought fees and costs against Plaintiffs based on the unaccepted proposal. The court denied the motion, concluding that the settlement proposal was invalid because, although Defendant apportioned the amounts offered to each of the Plaintiffs and stated the conditions, neither party could independently accept the offer. By a 4-3 vote the Supreme Court approved the "well reasoned" decision.
Court erred in denying fees under offer of judgment statute on ground that proposal was not made in good faith. Sharaby v. KLV Gems Co., Inc., 45 So.3d 560 (Fla. 4th DCA 2010). Defendant was sued along with a jewelry company that previously employed him. Defendant asserted that he had no personal liability, having retired from the company before the time the alleged wrongful acts occurred, and filed a motion to be dropped from the suit. Defendant served Plaintiff with a timely proposal for settlement, which Plaintiff rejected. Defendant’s Motion to Dismiss was granted. Plaintiff amended the complaint, and Defendant moved for summary judgment. Plaintiff agreed to summary judgment, stipulating to facts showing that Defendant was not with the company at the operative time. Defendant moved for fees under F.S. 768.79 based on Plaintiff's rejection of his settlement proposal. The trial court denied fees. Regarding the proposal for settlement, the court found: "The proposal for settlement was nominal, and the good faith requirement 'insists that the offeror have some reasonable foundation on which to base an offer.' . . . A reasonable basis for a nominal offer exists only where 'the undisputed record strongly indicate(s) that (the defendant) had no exposure' in the case. . . . The record in this case does not strongly indicate defendant had no exposure to liability." (Citations omitted.) The Fourth DCA reversed. "When defendant submitted his proposal for settlement, he had a reasonable foundation upon which to make the offer – nominal exposure. There existed no basis for finding defendant personally or individually liable to plaintiff. Thus, the trial court incorrectly determined that the proposal for settlement was not made in good faith and abused its discretion by denying defendant’s motion for an attorney’s fee award on this basis."
"Nominal" offer may still be made in good faith and support fee award under offer of judgment statute. Gawtrey v. Hayward, __ So.3d ___, 35 Fla.L.Weekly D2886 (Fla. 2d DCA, No. 2D09-5012, 12/22/2010). Defendant was sued in a dog-bite case. She was not the owner of the dog or the house where the attack occurred, but allegedly opened the door and let the dog into the house. Defendant served a settlement proposal on Plaintiff for $1500 when it looked like the victim's past and future medical bills would be more than $13,000. Plaintiff rejected the offer. The jury returned a verdict for Defendant. Pursuant to F.S. 768.79 and Fla.R.Civ.P. 1.442, Defendant moved for fees. The court denied the motion, reasoning "that the $1500 offer was 'nominal' and that [Plaintiff]'s case "was worthy of trial.'" The court did not find that the proposal was not made in good faith. The Second DCA reversed. To deny the fee motion, the trial court had to find that the proposal was not made in good faith. Here, there was no finding of lack of good faith, and the evidence would not have supported such a finding. In making a good-faith determination, "the reasonableness of [Plaintiff]'s decision to reject the proposal for settlement was irrelevant." Similarly, the "fact that [Defendant]'s offer was nominal in amount is not necessarily determinative of the issue of good faith." Rather, "the question of whether the proposal was served in good faith depended on whether [Defendant] had a reasonable foundation to make her offer and made it with the intent to settle the claim made against her by [Plaintiff] if the offer had been accepted." (Citations omitted.).
"Typical" language in a general release defining party as including "past, present and future affiliates" did not render proposal for settlement unenforceable. Jessla Construction Corp. v. Miami-Dade County School Board, __ So.3d ___, 35 Fla.L.Weekly D2552 (Fla. 3d DCA, No. 3D09-3018, 11/17/2010), 2010 WL 4628557. Jessla Construction filed a wrongful termination claim against School Board. The Board served Jessla with a proposal for settlement pursuant to F.S. 768.79 (2008) and Fla.R.Civ.P. 1.442. The proposal was conditioned upon execution of a general release (attached to the proposal) stating that Jessla "including all its past, present and future affiliates, subsidiaries, parent companies and all of its respective officers, directors, partners, shareholders, employees, representatives, agents, successors and assigns " would release the School Board. Jessla did not accept the proposal. The case was tried and judgment was rendered for School Board. The Board moved for fees and costs as a result of the unaccepted proposal, and the court awarded fees and costs. The Third DCA affirmed. Jessla asserted that the proposal was defective because the General Release "requires the participation of nonparties – 'past, present and future affiliates, subsidiaries, parent companies and all of its respective officers, directors, partners, shareholders, employees, representatives, agents, successors and assigns.' Jessla further argues that if not defective, the Proposal is ambiguous because the terms of the Proposal contradict the terms of the General Release – the Proposal requires that only Jessla release its claims against the School Board, whereas the General Release requires the participation of nonparties – and therefore, the Proposal is unenforceable." The appeals court was not persuaded, viewing the language in the release as "typical of the language contained in many general releases" (citations omitted) and concluded that it was in compliance with rule 1.442 and not ambiguous.
Court erred in finding defendant's proposal for settlement ambiguous and thus unenforceable. Donovan Marine, Inc. v. Delmonico, 40 So.3d 69 (Fla. 4th DCA 2010). Defendant served a joint proposal for settlement pursuant to F.S. 768.79 and Fla.R.Civ.P. 1.442, offering to settle with Plaintiff for $20,000. The proposal required Plaintiff to dismiss the case with prejudice and also required that "'[t]he writing evidencing acceptance of this proposal must include the explicit acknowledgment by the plaintiff that by making this proposal, defendants are not admitting that they have said or done anything improper referable to the plaintiff, and that the defendants are attempting to purchase their peace from this plaintiff.'" (Emphasis supplied.) Plaintiff rejected the offer, but later settled with a second defendant. The jury found for Defendant, who moved for a fee award pursuant to the rejected proposal. The court denied the motion, finding certain language in the proposal (in italics, above) ambiguous. The Fourth DCA reversed, concluding that there was nothing ambiguous about the proposal. "Rather than be ambiguous, the defendants specifically directed the language to be contained within the written acceptance. Reading the paragraph as a whole, the last phrase merely explains why the defendants were willing to pay $20,000." The appeals court also rejected Plaintiff's contention that the proposal was void due to its joint nature. "[T]he plaintiff maintained the ability to independently evaluate and act upon the proposal. The plaintiff’s decision was not dependent upon the evaluation and acceptance of another offeree."
Proposal for settlement under offer of judgment statute is declared unenforceable due to ambiguity. Nationwide Mutual Fire Ins. Co. v. Pollinger, 42 So.3d 890 (Fla. 4th DCA 2010). Pollinger sued Nationwide Mutual Fire Insurance Company ("Nationwide"). One count was a personal injury protection ("PIP") claim, and the other count was for uninsured motorist ("UM") coverage. Nationwide hired 2 different lawyers, Wicker Smith to defend the PIP claim and Garagozlo to defend the UM claim. The UM claim lawyer filed a proposal for settlement that contained the following provision: "In exchange for the payment set forth above, the Plaintiff, LAWRENCE POLLINGER, will dismiss the Defendant NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, from all claims, causes of action, and damages arising from the incident or accident giving rise to this lawsuit and will dismiss this lawsuit with prejudice." After Nationwide prevailed it moved for attorney's fees based on its proposal for settlement. The court granted Pollinger's motion to strike the proposal as ambiguous. The Fourth DCA affirmed, finding a latent ambiguity in the proposal. "Nationwide retained two different law firms to defend the different claims, but the offer was presented and signed by only one of them. A 'reasonable ambiguity' remained about the scope of the offer because Nationwide had split responsibility for the case between two law firms – did the offer cover just the UM claim or did it include the PIP claim as well?" Citing State Farm Mutual Auto Ins. Co. v. Nichols, 932 So.2d 1067 (Fla. 2006), the court ruled that "an extraneous fact in this case rendered Nationwide’s proposal ambiguous, so that it could not support a fee award under F.S. 768.79.
Denial of fees following rejected proposals for settlement is affirmed where terms of proposals were not stated with sufficient particularity. Darrow v. Heitman, 46 So.3d 184 (Fla. 2d DCA 2010). Defendant served Plaintiffs, who were spouses, with proposals for settlement that were rejected. Defendant prevailed and moved for fees under F.S. 768.79 (2007) and Fla.R.Civ.P. 1.442. The court denied the motion, concluding that Defendant "had not satisfied the specificity requirement of rule 1.442(c)(2)(C) when she conditioned the settlement upon the signing of 'a Release' without providing either a summary of the release or a proposed copy of the release." The Second DCA reluctantly affirmed. Plaintiffs argued "that the content of 'a Release' [not provided with the proposals] was unknown and could not be ascertained from the settlement proposal and that this created a condition that was not stated with particularity as required by the rule." The appeals court had "considerable doubt that [Plaintiffs'] attorney had a serious concern about the intended language of the release" but noted that "rule 1.442 and the case law place no onus upon [Plaintiffs'] attorney to clarify the terms of the proposal. [Defendant] did not state whether she wanted each plaintiff to sign a general or a specific release and did not summarize the language that would be used to assure that the other plaintiff's claim on this jointly owned property would survive the execution of 'a Release' by the other spouse."
Court correctly refused to award fees under arbitration statute against individual who was dismissed from case and thus no longer a “party.” Dunkin' Donuts Franchised Restaurants, LLC v. 330545 Donuts, Inc., 27 So.3d 711 (Fla. 4th DCA 2010). A dispute between plaintiffs and defendant was arbitrated. Unhappy with the amount of the award in its favor, a corporate plaintiff pursued a trial de novo. A defense verdict was entered. Defendant then sought an award of attorney’s fees against the principal of the corporate plaintiff. The court refused to enter the fee award. Among other things, the principal had been voluntary dismissed from the case earlier pursuant to a stipulation of all parties. The Fourth DCA affirmed. "Because [the principal] took a stipulated voluntary dismissal under rule 1.420(a)(1)(B), he was no longer a 'party' subject to an award of attorney’s fees within the meaning of section 44.103(6)." The court also rejected the argument that it should adopt the Third DCA’s board definition of “parties” in F.S. 57.105, because the purpose of section 44.103(6) is to encourage acceptance of the arbitration award, not to punish litigation misconduct.
First voluntary dismissal without prejudice of suit does not support fee award under offer of judgment statute. Smith v. Loews Miami Beach Hotel Operating Co., Inc., 35 So.3d 101 (Fla. 3d DCA 2010). Plaintiff sued for alleged negligent infliction of emotional distress. Defendant served Plaintiff with a proposal for settlement. Plaintiff did not respond. Defendant moved for summary judgment. Before the hearing Plaintiff filed and served a notice of voluntary dismissal without prejudice. Defendant’s motion for fees and costs based on its settlement proposal and F.S. 768.79 was granted. The Third DCA reversed. "[A] involuntary dismissal, a dismissal with prejudice, and a second voluntary dismissal (which serves as adjudication on the merits pursuant to [Fla.R.Civ.P.] 1.420(a)(1)) all qualify as a basis of an award of attorney’s fees under section 768.79. The Florida Supreme Court in MX [Investments, Inc. v. Crawford, 700 So.2d 640 (Fla. 1997)] found that the defendant-hotel was not entitled to an award of attorney’s fees where the plaintiff rejected a proposal of settlement and then voluntarily dismissed his complaint without prejudice. Similarly, in the instant case, [Defendant] is not entitled to an award of attorney’s fees and costs because [Plaintiff]’s voluntary dismissal was her first notice of dismissal, her voluntary dismissal was without prejudice, and her voluntary dismissal did not operate as an adjudication on the merits." (Emphasis by court.) Note: In reversing a trial court's denial of attorney's fees, the Fifth DCA stated: "We have rejected the view that a party taking a voluntary dismissal can do so for strategic reasons and thereby prevent the other party from being determined the 'prevailing party.' Vidibor v. Adams, 509 So.2d 973, 974 (Fla. 5th DCA 1987)." Shepheard v. Deutsche Bank Trust Co. Americas, 38 So.3d 825 (Fla. 5th DCA 2010).
FILES Law firm could not assert retaining lien over its files in contingent fee cases because contingency had not yet occurred. Brickell Place Condo Ass'n, Inc. v. Joseph H. Ganguzza & Associates, P.A., 31 So.3d 287 (Fla. 3d DCA 2010). See discussion in “Fees” section.
Court erred in ordering lawyer to produce file on separate, unrelated case in which he was representing same client. Toledo v. Publix Super Markets, Inc., 30 So.3d 712 (Fla. 4th DCA 2010). Lawyer represented Client in a slip and fall case. Lawyer also represented client in a separate, unrelated auto accident case. Defendants sought production of "'any and all non-privileged portions'" of Lawyer's file on Client in the auto case. Lawyer objected on attorney-client privilege and work product grounds. "Without requiring [Defendants] to identify a basis for why they were entitled to invade opposing counsel’s file," the court ordered Lawyer to submit his entire auto case file for an in camera inspection. Calling the subpoena "a classic 'fishing expedition,'" the Fourth DCA reversed. Defendants "made no attempt by way of interrogatories or requests for production to determine whether there were documents in the auto accident file relevant to the instant case; much less that they were 'unable without undue hardship to obtain the substantial equivalent of the materials by other means.' [Fla.R.Civ.P. 1.280(b)(3).] Curiosity about the contents of the auto accident file does not satisfy the relevancy requirement. Having failed to make even a minimal showing of entitlement to any documents contained in the auto accident file," there was no justification under the Florida Rules of Civil Procedure to order Lawyer to provide his file for an in camera inspection.
When convicted defendant files mandamus petition seeking materials from file, court must order response from trial counsel before ruling on petition. Raymond v. State, 31 So.3d 946 (Fla. 2d DCA2010). Defendant petitioned for a writ of mandamus, seeking to compel his trial counsel to respond to his request for copies of materials from his file. The court denied the petition without getting any response from trial counsel. The Second DCA reversed and remanded. "[W]hen the defendant files a petition for mandamus, the trial court should order a response from the attorney to determine what, if anything, must be provided to the defendant and likewise to determine what is available if the defendant wishes to purchase a copy." A defendant has a right to certain file materials (e.g., papers belonging to him, transcripts prepared at public expense) and a right to purchase copies of other file materials.
Public defender ordered to provide former client with free copies of crime scene photos from file. Morse v. State, __ So.3d ___ (Fla. 2d DCA, No. 2D10-738, 12/22/2010). Convicted Defendant, who was represented by the Public Defender’s Office ("PD") at trial, filed a mandamus petition to require PD to provide him with free copies of the crime scene photos from trial. The circuit court denied the petition. The Second DCA reversed. "The circuit court held that [Defendant] was not entitled to relief because his public defender inspected and copied the photographs during the discovery process. . . . However, the fact that the State provided the photos to defense counsel, and counsel copied them, does not limit [Defendant]'s entitlement to documents in his appointed counsel's file. See Smith v. State, 889 So.2d 1009, 1010 (Fla. 3d DCA 2004) ('The petitioner is entitled to receive from his former counsel, at no cost to petitioner, any and all trial and hearing transcripts, copies of motions, and any state discovery presented to defense counsel.')" (Emphasis by Second DCA.)
INEFFECTIVE ASSISTANCE AND RIGHT TO COUNSEL Florida Supreme Court rules that lawyer-client communication problems did not result in ineffective assistance of counsel. Everett v. State, __ So.3d ___, 35 Fla.L.Weekly S587 (Fla., No. SC09-646, 10/14/2010), 2010 WL 4007643. Defendant was convicted of murder and sentenced to death. His motion for postconviction relief pursuant to Fla.R.Crim.P. 3.851 was denied. The Florida Supreme Court affirmed. Some of Defendant's claims related to communication problems with trial counsel ("Lawyer"). Defendant alleged that Lawyer was ineffective for failing to communicate with and advise him not to speak to law enforcement while he was in an Alabama jail. The Court rejected this contention. "[A]t the time that [Defendant] was in Alabama and gave statements to law enforcement officers, the Florida trial court had not determined that [Defendant] was indigent, as required by both [F.S.] sections 27.51-.52 and [Fla.R.Crim.P.] 3.111(5). Likewise, [Lawyer] had not been appointed as counsel and was not 'representing' [Defendant] according to sections 27.51-.52 and rule 3.111 because [Defendant] had not been formally charged, was not under custodial restraint in Florida, and had not had a first appearance for his Florida charges." The Court also rejected Defendant's contention that Lawyer was ineffective because Lawyer "did not get along with [Defendant] and disbelieved much of what [Defendant] told him about the offenses." This relationship problem does not rise to the level of ineffective assistance. "The Sixth Amendment right to the assistance of counsel does not 'guarantee[] a 'meaningful relationship' between an accused and his counsel.' Morris v. Slappy, 461 U.S. 1, 14 (1983). . . . Because [Defendant] has failed to show specifically how his relationship with [Lawyer] caused any deficient performance on the part of [Lawyer], [Defendant]'s claim is legally insufficient."
Florida Supreme Court rules that 2-year window under Green v. State does not apply if defendant had actual notice of deportation proceeding more than 2 years before moving to withdraw plea. Canseco v. State, __ So.3d ___, 35 Fla.L.Weekly S217 (Fla., No. SC09-1535, 4/22/2010), 2010 WL 1609796. Defendant, a Mexican national, pleaded no contest in 1995 and was convicted. The plea acknowledged that Defendant understood that the plea could result in deportation. Deportation proceedings were brought against Defendant in 2002. In 2008 Defendant moved to withdraw his plea, alleging that it was not entered knowingly, intelligently, and voluntarily because the deportation consequences were not explained to him in violation of Fla.R.Crim.P. 3.172(c)(8). The trial court denied Defendant's motion. He appealed, contending his motion was timely because the Supreme Court "created a two-year window for all defendants whose convictions were already final in State v. Green, 944 So.2d 208 (Fla. 2006)." The First DCA affirmed, but certified the following question as one of great public importance: "WHETHER A DEFENDANT MAY OBTAIN THE BENEFIT OF A NEW TWO-YEAR WINDOW PERIOD UNDER STATE V. GREEN, 944 SO.2D 208 (FLA. 2006), IF THE CLAIMANT RECEIVED ACTUAL NOTICE OF A DEPORTATION PROCEEDING MORE THAN TWO YEARS BEFORE THE MOTION TO WITHDRAW PLEA." Canseco v. State, 12 So.3d 923 (Fla. 1st DCA 2009). The Florida Supreme Court affirmed. "[W]e conclude that Green did not revive claims that were final under Peart [v. State, 756 So.2d 42 (Fla. 2000)], and applies to only those claims that were not yet ripe under Peart that would have been time-barred by Green." The Court concluded: "[Defendant]'s argument – that Green provided a two-year window in which all defendants whose cases were final could file a motion to vacate a plea – is not supported by a logical reading of the opinion. If [Defendant]'s argument was taken to its logical conclusion, all defendants whose cases were final when Green was issued, even those that were disposed of under Peart's guidelines, would be eligible to file a motion to withdraw plea. Surely such a result was not this Court's intent." (Emphasis in original.)
Trial counsel's failure to object to reclassification of charged crime constituted ineffective assistance; conviction reversed. Hernandez v. State, 30 So.3d 610 (Fla. 3d DCA 2010). Defendant was charged with "aggravated battery causing great bodily harm." The prosecutor's closing argument and the jury instructions, however, did not distinguish between the original charge and "aggravated battery using a deadly weapon." Based on the jury’s verdict, the court reclassified the charge to a first-degree felony. Defendant's counsel did not object to reclassification. Defendant was convicted and sentenced. Defendant moved for postconviction relief under Fla.R.Crim.P. 3.850, contending that counsel was ineffective for failing to object to the reclassification. The motion was denied. The Third DCA reversed. "A trial counsel’s failure to object to an illegal sentence meets the Strickland [v. Washington, 466 U.S. 668 (1984)] standard for an ineffective assistance of counsel claim. [Citations omitted.] The record in this case clearly shows that [Defendant]’s defense counsel failed to object to the reclassification, which resulted in an illegal sentence."
Fourth DCA affirms denial of motion to withdraw guilty plea based on alleged misadvice of counsel as to deportation consequences. Flores v. State, __ So.3d ___, 35 Fla.L.Weekly D1562 (Fla. 4th DCA, No. 4D08-3866, 7/14/2010), 2010 WL 2882465. A Defendant charged with a felony entered a negotiated plea to a misdemeanor. During the plea colloquy, the judge gave Defendant the required warning that the conviction may result in deportation. After his conviction the immigration authorities sought to deport Defendant. Defendant filed a Fla.R.Crim.P. 3.850 motion to withdraw his plea, alleging that he entered the plea because his counsel assured him that the misdemeanor conviction would not cause deportation. At the hearing Defendant "admitted that he understood the judge’s warning but relied on his attorney’s advice instead." (Footnote omitted.). The motion was denied. The Fourth DCA affirmed. The trial court's "deportation warning in the plea colloquy cures any prejudice arising from counsel’s alleged misadvice." The appeals court distinguished Padilla v. Kentucky, 130 S.Ct. 1473 (2010). Padilla was not advised by the judge during the plea colloquy that his plea might result in deportation. The court concluded: "A defendant’s sworn answers during a plea colloquy must mean something. A criminal defendant is bound by his sworn assertions and cannot rely on representations of counsel which are contrary to the advice given by the judge. . . . When the Court advises that the plea may result in deportation, a defendant has an affirmative duty to speak up if the attorney has promised something different. . . . "
Convicted defendant satisfies prejudice prong of Strickland v. Washington by showing counsel failed to move for mistrial that would have been granted. Middleton v. State, 41 So.3d 357 (Fla. 1st DCA 2010). Defendant was on trial for murder. After jury deliberations began the state's motion to strike a juror was granted. The court asked Defendant whether he wished to proceed with 11 jurors or have an alternate seated. Defendant's counsel, however, failed to inform Defendant of a third option: to move for a mistrial on the ground that the juror was discharged during deliberations. Proceeding with an 11-member jury, Defendant was convicted. In Defendant's postconviction motion, he asserted that counsel was ineffective in failing to move for a mistrial. The motion was denied. The First DCA reversed. The case "squarely raises the issue of whether the certain grant of a mistrial satisfies the prejudice requirement of Strickland [v. Washington, 466 U.S. 668 (1984)]." Denial of a significant procedural right satisfied the prejudice prong of Strickland.
Defendant cannot establish prejudice where error complained about was necessarily considered by court during Anders review. Towbridge v. State, 45 So.3d 484 (Fla. 1st DCA 2010). Convicted Defendant appealed with appointed counsel, who filed an Anders brief. The First DCA affirmed. Defendant later petitioned alleging ineffective assistance of appellate counsel, asserting that counsel was ineffective for failing to argue that the court erred in denying his motion for judgment of acquittal because the evidence against him was circumstantial and not inconsistent with a reasonable hypothesis of innocence. The First DCA concluded that Defendant could not show the required prejudice. When an Anders brief is filed, the appeals court examines the trial record for any errors that are apparent on its face. The court stated: "It is reasonable to presume that when the court affirms an Anders appeal it has fully considered and rejected all potential issues that were apparent on the face of the record. . . . Accordingly, at least with respect to an issue that was apparent on the face of the record, the petitioner cannot establish that any alleged deficient performance by counsel in not briefing such an issue 'compromised the appellate process to such a degree as to undermine confidence in the correctness of the result' because the issue was necessarily considered by the court in its Anders review." (Citations omitted.)
Second DCA concludes that Fla.R.Crim.P. 3.850 motion alleging trial court's lack of jurisdiction must be filed within 2 year period prescribed by rule; conflict certified. Carbajal v. State, 28 So.3d 187 (Fla. 2d DCA 2010). Criminal Defendant was convicted in 2002. In 2007 he moved for postconviction relief under Fla.R.Crim.P. 3.850, alleging that "the circuit court's jurisdiction was never properly invoked because 'all the crimes alleged and all the actions pertinent to those crimes' occurred in a single judicial circuit, and thus, the Statewide Prosecutor did not have jurisdiction to prosecute the case." The court denied Defendant's motion as untimely. The Second DCA affirmed. "[W]e reject [Defendant]'s contention that a rule 3.850 motion can be filed at any time if it asserts a claim based on the circuit court's lack of jurisdiction. We reach this conclusion based on the language of the rule itself." The court certified conflict with decisions of other DCAs.
Claim for postconviction relief to set aside 1978 uncounseled conviction properly denied as untimely under Fla.R.Crim.P. 3.850. Solano v. State, 32 So.3d 648 (Fla. 1st DCA 2010). Appellant sought to set aside his 1978 conviction for two misdemeanors. He alleged that he was not represented by counsel and that the record did not indicate that he waived counsel. The court treated the claim as one for postconviction relief under Fla.R.Crim.P. 3.850. The court denied the motion as untimely, but certified a question to the First DCA as one of great public importance. The appellate court rephrased the question as: "Whether a conviction procured without affording the accused the right to counsel or without securing from the accused a proper waiver of the right to counsel is void and may therefore be collaterally attacked at any time, the time limits of Florida Rule of Criminal Procedure 3.850(b) notwithstanding." The First DCA answered in the negative.
Fourth DCA calls for rule amendments to address frivolous post-conviction motions. Marc v. State, __ So.3d ___ (Fla. 4th DCA, No. 4D09-2964, 9/29/2010), 2010 WL 3766859. Convicted Defendant filed a 52-page motion for postconviction relief under Fla.R.Crim.P. 3.850. The motion was denied, and Defendant appealed. The Fourth DCA affirmed, and in its opinion called for measures to remedy the "abusiveness" of such mertiless motions. The court reminded trial courts they may dismiss excessive motions with leave to amend, or issue an order to show cause why they should not be dismissed without prejudice. A court also may refer the movant to the Department of Corrections for possible disciplinary measures, which include forfeiture of gain time. See F.S. 944.279(1) (2009). The court called for rule amendments, suggesting that "the Florida Bar’s criminal rules committee and our supreme court consider amending Florida Rule of Criminal Procedure 3.850, and that the Department of Corrections consider amending Florida Administrative Code Rule 33-501.301(7)(i)(2), to require a postconviction movant to identify the person who prepared the motion on the movant’s behalf so that the Department may discern and sanction any other person responsible for filing frivolous motions."
Cases involving right-to-counsel and self-representation issues included: Florida Supreme Court addresses self-representation and standby counsel issues in appeal of death penalty case. McKenzie v. State, 29 So.3d 272 (Fla. 2010). A Defendant convicted of murder and sentenced to death raised issues on appeal relating to his right of self-representation and the assistance of standby counsel. The Supreme Court affirmed. Regarding self-representation, Defendant contended that the trial court's Faretta [v. California, 422 U.S. 806 (1975)] and Nelson [v. State, 274 So.2d 256 (Fla. 4th DCA 1973)] inquiries were defective and thus resulted in a violation of the 6th Amendment. The Court emphasized that a Faretta inquiry is designed to address whether a defendant knowingly and intelligently waives the right to counsel, not whether that defendant can prepare an effective legal defense. "[T]he ability to prepare a competent legal defense and technical legal knowledge (or lack thereof) are not relevant issues in a self-representation inquiry." (Emphasis by Court.) Defendant's Nelson argument also was rejected. "The trial court ultimately determined that a difference of trial strategy, not incompetence, was the reason discharge was sought. Accordingly, we conclude that any further Nelson inquiry, which is necessary only when the asserted reason for the discharge of appointed counsel is incompetence, was not required." Defendant's contention that his access to standby counsel was improperly limited was rejected because it was not preserved for appellate review. Nevertheless, the Court discussed the issue and concluded "that the trial court did not improperly restrict the role of standby counsel here. [Defendant] was abundantly clear when he expressed his request to represent himself during the penalty phase. Further, when the trial court granted [Defendant]’s request to represent himself, he was advised that standby counsel would be available to him if he had any questions. Therefore, it cannot be assumed that [Defendant] expected or even desired standby counsel to independently participate in an unsolicited manner during any portion of the penalty phase. Finally, and perhaps most telling, when the trial court instructed that standby counsel not independently participate in an unsolicited manner, [Defendant] was informed that he could ask his standby counsel any questions that he might have. [Defendant] neither asked standby counsel any questions nor did he object to the trial court’s censure."
Florida Supreme Court rules that defendant's right to self-representation was not violated when court appointed special counsel to develop penalty-phase mitigation. Barnes v. State, 29 So.3d 1010 (Fla. 2010). Barnes was charged with murder. After conducting a Faretta hearing, the court allowed Barnes to represent himself. He was found guilty. At the penalty phase Barnes refused to present any mitigation evidence. The court appointed special counsel to investigate and present mitigation. Barnes was sentenced to death. On appeal Barnes contended that the court erred by appointing mitigation counsel over his objection. The Florida Supreme Court affirmed. "Because the trial court and this Court each has a constitutional obligation to ensure that Barnes received individualized sentencing and that the death penalty is fairly and constitutionally imposed, Barnes' right to self-representation was not violated by the appointment of independent counsel under the facts and circumstances present in this case. Mitigation counsel was appointed, not to supplant Barnes as his own counsel, but to assist the court by presenting mitigation evidence where Barnes refused to do so."
Florida Supreme Court concludes defendant's request to proceed pro se was "unequivocal" and reverses murder conviction. Pasha v. State, 39 So.3d 1259 (Fla. 2010). Defendant in a murder case was dissatisfied with counsel. Just before jury selection began, Defendant asked the court to proceed pro se. The court conducted a Faretta [v. California, 422 U.S. 806 (1975)] hearing, where Defendant stated that he "would love to have a lawyer" but did not want his current counsel. Defendant indicated that he realized the court would not appoint a new lawyer and that he would rather proceed pro se. The court denied the request. Defendant was convicted. He appealed, contending that the court "erred in determining that his request to proceed pro se was equivocal and in thereafter denying that request." The Supreme Court agreed and reversed the conviction, relying on the reasoning of Weaver v. State, 894 So.2d 178 (Fla. 2001). In Weaver, the Court stated: "A defendant who persists in discharging competent counsel after being informed that he is not entitled to substitute counsel is presumed to be unequivocally exercising his right to self-representation." Here, "[t]he fact that [Defendant] stated to the trial court that he preferred representation by a different attorney is of no consequence. [Defendant]'s comments showed his correct understanding that the trial court‘s ruling after the Nelson hearing meant that [trial counsel] was the only appointed counsel to which he was entitled. Faced with that reality, [Defendant] clearly expressed a desire to proceed pro se in order to avoid proceeding with counsel he found to be unacceptable."
Court's failure to conduct preliminary Nelson inquiry is per se reversible error. Torres v. State, 42 So.3d 910 (Fla. 2d DCA 2010). Defendant moved to discharge appointed counsel. On the day of trial, Defendant's counsel informed the court that there was a problem between the two. Defendant stated that there was a conflict of interest and wanted a new lawyer. The court held a Faretta self-representation hearing, but Defendant chose to go to trial represented by his existing counsel. Defendant was convicted. The Second DCA reversed. When a defendant makes an unequivocal request to discharge counsel, the trial court must determine the reason for the request. If counsel is not rendering effective assistance, then substitute counsel is to be appointed. See Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973). Here, the trial court failed to conduct a preliminary Nelson hearing. This was reversible error and "a harmless error test does not apply."
Criminal defendant validly waived right to counsel after watching pre-recorded video about constitutional rights. Edenfield v. State, 45 So.3d 26 (Fla. 1st DCA 2010). Defendant was arrested. He "watched a pre-recorded video explaining the constitutional rights of individuals accused of committing a crime, signed several waiver forms, and testified to the County Court judge that he wished to 'handle the case' himself." He pleaded no contest. Defendant subsequently moved to withdraw his plea. When this was denied, Defendant petitioned the First DCA for a writ of certiorari. The appellate court denied the petition. Under Faretta v. California, 422 U.S. 806 (1975), a waiver of the right to counsel must be knowing and intelligent – that is, made with "eyes open." Fla.R.Crim.P. 3.111(d)(2) (2009) provides the procedure that Florida courts are to use in complying with Faretta. This rule "requires only: (1) advisement of the dangers of self-representation; and (2) enough of an inquiry to ensure the defendant is waiving the right to counsel knowingly and intelligently." This standard was met. "The County Court discussed with [Defendant] whether he had prior convictions, whether he wished to rehear the mandatory minimum penalties for DUI, whether he wished to represent himself, whether he had read and understood the rights on the 'blue form,' and how he wished to plead. Although this inquiry may have been brief, it gave the County Court adequate time to make valid conclusions about [Defendant]’s competency to decide whether he wished to waive his right to counsel."
Court erred in denying motion to withdraw because Office of Criminal Conflict and Civil Regional Counsel not subject to appointment for indigent defendants in postconviction case. Office of Criminal Conflict and Civil Regional Counsel, Second District v. Smith, 35 So.3d 105 (Fla. 2d DCA 2010). The Office of Criminal Conflict and Civil Regional Counsel for the Second District moved to withdraw from two postconviction cases in which it had been appointed to represent indigent defendants. The court denied the motions. The Second DCA quashed the orders. It agreed with the First and Fifth DCAs that Regional Counsel is not subject to appointment to represent indigent defendants in postconviction proceedings. See Deen v. Wilson, 1 So.3d 1179 (Fla. 5th DCA 2009) and Office of Criminal Conflict and Civil Regional Counsel, First District, 19 So.3d 447 (Fla. 1st DCA 2009).
Court erred in denying defendant's request to represent himself in probation revocation hearing based on apparent lack of legal skills. Thompson v. State, 37 So.3d 939 (Fla. 2d DCA, 2010). Defendant in a probation revocation proceeding had appointed counsel. Defendant filed a pro se motion to dismiss his counsel. The court held a hearing on Defendant's complaints and found that counsel was providing effective representation. Defendant then asked to represent himself. "The court questioned [Defendant] at some length about legal issues. It then denied [Defendant]'s request to proceed pro se, expressing concern about his ability to represent himself, especially considering that [Defendant] faced a possible five-year prison sentence." Defendant was found to have violated probation. The Second DCA reversed. The concern is whether a defendant "knowingly and intelligently" waived his right to counsel, not whether the defendant possesses legal skills. The trial court "erred by focusing on whether [Defendant] was capable of representing himself rather than whether his election to do so was knowingly and intelligently made."
Criminal defendant's decision to assert speedy trial right does not trigger Faretta self-representation inquiry. Boyd v. State, 45 So.3d 557 (Fla. 4th DCA 2010). Convicted Defendant appealed, asserting that the trial court should have conducted a Faretta inquiry when he insisted that his lawyer not waive his speedy trial rights. The Fourth DCA affirmed. "[Defendant] never requested self-representation. Nor is the decision to waive or assert speedy trial rights a core function which would trigger a Faretta inquiry."
Faretta inquiry was required even though defendant had shown he might lack the restraint needed to represent himself. Flournoy v. State, __ So.3d ___ (Fla. 2d DCA, No. 2D09-4177, 11/24/2010), 2010 WL 4772127. Defendant made an unequivocal request to represent himself. The court denied Defendant's request without holding a Faretta hearing. Defendant was convicted. The Second DCA reversed. The State contended "that any Faretta inquiry would be futile because [Defendant] failed to demonstrate during the pendency of his trial that he had the ability to exercise the necessary restraint to represent himself." The appeals court disagreed. "[T]he seeming futility of a trial court's Faretta inquiry 'does not eliminate the requirement that a hearing be held to enable the trial court to make the appropriate determination of whether a defendant can represent himself.'" (Citation omitted.) The request for self-representation was unequivocal, so the court's failure to hold a Faretta hearing resulted in per se reversible error.
Court erred in not appointing counsel for indigent "non-offending" parent in dependency case. In re A.G., 40 So.3d 908 (Fla. 3d DCA 2010). The Dept. of Children and Family Services filed a dependency petition charging Mother with abuse. No charges were brought against Father. Father was indigent and requested appointed counsel. The court denied his request, relying on C.L.R. v. Department of Children & Families, 913 So.2d 764 (Fla. 5th DCA 2005). The Third DCA granted Father's petition for writ of certiorari. The court rejected C.L.R.’s distinction between "offending" and "non-offending" parents for purposes of appointment of counsel, finding it lacking in statutory support. The court certified conflict with C.L.R.
Court erred in denying defendant's request for continuance so he could retain private counsel. Brown v. State, 38 So.3d 212 (Fla. 2d DCA 2010). Defendant was arrested for alleged violation of community control. The hearing was set for less than two months following his arrest. Just before the hearing, Defendant "made his first and only request for a continuance to retain private counsel." The court denied the request, proceeded with the hearing, and found Defendant guilty. Defendant appealed, contending that the court abused its discretion in denying his motion for continuance. Agreeing with Defendant, the Second DCA held that the lower court abused its discretion and reversed. The appellate court applied the factors listed in Rice v. NITV, LLC, 19 So.3d 1095, 1099 (Fla. 2d DCA 2009): "1) whether the movant suffers injustice from the denial of the motion; 2) whether the underlying cause for the motion was unforeseen by the movant and whether the motion is based on dilatory tactics; and 3) whether prejudice and injustice will befall the opposing party if the motion is granted." The court stated: "[Defendant] had little to no opportunity to raise this issue prior to this hearing because only two months had passed since his arrest. Also, the record suggests he may only have been in court one prior time, at his first appearance. The trial court made no finding that the basis for his motion was 'dilatory tactics.' And although the trial court held that the case had 'been outstanding long enough,' this record does not set forth any possible prejudice or injustice to the State had the trial court granted a continuance so early in the proceedings. In fact, the State raised no objection to [Defendant]'s request."
Florida Supreme Court amends Rules of Juvenile Procedure to require counsels' presence at juvenile detention hearings. In re: Amendments to Florida Rule of Juvenile Procedure 8.010, __ So.3d ___, 35 Fla.L.Weekly S663 (Fla., No. SC10-252, 11/10/2010), 2010 WL 4483526. See discussion in “Rule Changes” section.
LAW FIRMS Florida Supreme Court disciplines lawyer who allowed non-lawyer to have signatory authority on escrow account. Florida Bar v. Hines, 39 So.3d 1196 (Fla. 2010). See discussion in “Disciplinary Proceedings” section.
Civil theft judgment against lawyer who left law firm and took clients with him reversed, despite conduct called “loathsome” by DCA. Winters v. Mulholland, 33 So.3d 54 (Fla. 2d DCA 2010). A case with facts "enough to make any legal ethics professor cringe" involved a lawyer leaving a law firm and taking clients with him. Winters, an associate, left Mulholland's law firm. Twelve of the firm's "lucrative" clients went with him. Winters copied or kept some client files. Before Winters left, his "paramour" (a firm paralegal) hacked into the firm's computer system and "altered client contact data for some of the clients assigned to Winters to make it more difficult for Mulholland to contact these clients." (Footnote omitted.) Mulholland sued Winters for RICO, civil theft, conversion, intentional interference with advantageous business relationships, accounting, and extinguishment of retaining liens. Only the civil theft claim went to the jury. Judgment was entered against Winters for more than $1.4 million. The Second DCA reversed, ruling that Mulholland "failed to prove that any of Winters' actions were the proximate cause of any damages." Although the court had "no real question" that Winters' activities in connection with leaving the firm "constitute the unauthorized use of Mulholland's client files, misappropriation, fraud, and deception," in order to recover on his civil theft claim Mulholland had to also prove by clear and convincing evidence that he was injured "by reason of any violation" of the theft statutes. F.S. 772.11 (2001). Mulholland failed to carry this burden. "For example, Mulholland presented no evidence that any client chose to leave Mulholland and go with Winters because Winters had a copy of their file." Additionally, "while the alterations to the client information in the computer system may have affected Mulholland's ability to contact his clients, no client testified that he or she left Mulholland and went with Winters because Mulholland never contacted them." Furthermore, "Mulholland did not present any evidence to establish that any of the clients left because Winters told them that Mulholland was retiring."
Florida Bar approves opinion requiring lawyers to protect confidentiality of client information stored on devices like copiers, scanners, fax machines, cell phones, and flash drives. Florida Ethics Opinion 10-2. See discussion in “Confidentiality and Privileges” section.
Lawyer's agreement not to represent anyone against the law firm that formerly employed him does not violate public policy. Alan B. Garfinkel, P.A. v. Mager, __ So.3d ___ (Fla. 5th DCA, Nos. 5D09-1991, 5D09-3272, 12/23/2010). After his employment with Law Firm was terminated, Lawyer sued Law Firm for money allegedly due him. Law Firm and Lawyer entered into a settlement agreement providing that Lawyer "affirmatively undertakes that he has not and will not hereafter render any assistance, advice, counsel, support or information of any kind or description whatsoever to any person, group, company or association to initiate, maintain, or prosecute any lawsuit or claim against" Law Firm or its principal individually. The agreement also recited that this provision was included to induce Law Firm to enter the agreement and pay Lawyer. Law Firm later sued Lawyer alleging that he breached the agreement "by, among other things, representing clients in actions brought against" Law Firm. Lawyer moved to dismiss, "arguing that the settlement agreement was against public policy because it improperly limited the freedom of potential clients to choose [Lawyer] as their lawyer and limited [Lawyer]'s freedom to accept future clients." The court found that the agreement violated Rule 4-5.6(a) and granted Lawyer's motion to dismiss. The court recognized that a violation of the Rules of Professional Conduct did not require it to void the agreement but ruled that, because the agreement violated the rights of future clients to choose Lawyer as their counsel, it violated public policy. Law Firm appealed, contending that the agreement did not violate public policy. The Fifth DCA agreed and reversed. Courts are to exercise extreme caution before declaring a contract void as against public policy. See Bituminous Cas. Corp. v. Williams, 17 So.2d 98 (Fla. 1944). Accordingly, the court considered the intent underlying Rule 4-5.6, which is "to protect the ability of future clients to retain a lawyer of their choosing and to prohibit attorneys and their present clients and adversaries from limiting that ability by private agreement. See Fla. Ethics Op. 93-4 [parenthetical omitted]. While the right of a party to chose his or her attorney is deeply engrained in our jurisprudence, that right is not unlimited. A party does not have the right to an attorney possessing confidential information of the adversary so as to provide the party with an unfair informational or tactical advantage." (Citations omitted.) Lawyer had been managing partner for Law Firm and had represented the firm's principal individually. Lawyer had acquired confidential information about Law Firm's operations that could give Lawyer an unfair tactical advantage in litigation against Law Firm. The court observed the case involved two competing public interests, the right to retain a lawyer of one’s own choosing and the public interest in ensuring that a client does not have to worry about his or her lawyer later using confidential information against the client. Here, the parties' agreement "reflects a reasoned effort to balance the aforesaid public interests and would not be injurious to the public good or otherwise contrary to public policy."
Class action certification upheld in case accusing law firm of violating consumer collection and deceptive trade practices laws. Law Offices of David J. Stern, P.A. v. Banner, __ So.3d ___ (Fla. 4th DCA, No. 4D09-3928). Plaintiff filed sued Law Firm alleging violations of the Florida Consumer Collection Practices Act and the Florida Deceptive and Unfair Trade Practices Act. Plaintiff's claims were based on "Law Firm’s transmission of reinstatement letters to borrowers demanding payment for fees and costs which plaintiffs contend were unreasonable, excessive, or 'not currently due and owing'" including service of process fees, title search and title examination fees, attorneys’ fees, and other charges. The court granted Plaintiff's motion for class certification. The Fourth DCA affirmed, concluding that the trial court did not abuse its discretion in certifying the class.
LEGAL MALPRACTICE Summary judgment for defendant law firm in legal malpractice action affirmed, where client had acted contrary to firm’s legal advice. KT Holdings USA, Inc. v. Akerman, Senterfitt & Eidson, 34 So.3d 61 (Fla. 3d DCA 2010). "MSF" agreed to buy the assets of what later became known as "KT Holdings." Law Firm was retained to represent the seller in the transaction. After entering into the letter of intent but before the sale closed, the president and other owners of KT Holdings decided to buy a jet. They did not want to disclose the purchase to MSF. The president was told by one or more of Law Firm's lawyers that title should not be placed in the selling entity. Law Firm was not retained to handle the purchase of the jet or to provide representation at the closing. The jet was not disclosed on the schedule of assets that were excluded from the sale. After the sale closed some disputes arose. MSF sued KT Holdings, its related entity ("KT Trading"), the former president, and others in state court in Tampa. MSF then learned about the jet and sought its "'recovery.'" In what the Third DCA referred to as an "unusual" judgment, the Tampa court ruled that the jet belonged to the buyer, MSF. The KT entities then sued Law Firm in Miami for legal malpractice. The Miami court granted summary judgment for Law Firm, reasoning that "the true cause of any losses by the KT entities regarding the aircraft was their failure to assert 'mutual mistake' as an affirmative defense in the Tampa lawsuit." Plaintiffs appealed. The Third DCA affirmed. Among the "undisputed facts" were: the seller did not intend to include the jet in the asset sale; the purchaser did not intend to buy it; and the president acted the way he did "despite specific advice" from Law Firm to the contrary. The trial court "correctly concluded that New York law [which governed the sale] would not countenance a result never bargained for by seller and purchaser, and that New York law would not ignore the undisputed fact that another party (KT Holdings) provided all of the purchase money for the aircraft." The court summarized: "MSF’s claim to the aircraft was refuted as a matter of law by the simple facts that it did not know about, bargain for, or pay for the jet. There is no justice – none – in MSF’s attempt to turn [the president]’s simple mistake into an early multi-million dollar holiday gift to itself."
Failure to allege ultimate facts relating to duty and breach leads to dismissal of legal malpractice complaint. K.R. Exchange Services, Inc. v. Fuerst, Humphrey, Ittleman, PL, __ So.3d ___ 35 Fla.L.Weekly D2317 (Fla. 3d DCA, No. 3D09-1733, 10/20/2010), 2010 WL 4103311. Plaintiff sued Law Firm and a firm lawyer alleging legal malpractice. Plaintiff had not been a client of Law Firm, but alleged that it was an intended third-party beneficiary of Law Firm's retainer agreement with its actual client. The court granted Law Firm's motion to dismiss. The Third DCA affirmed. The court rejected Plaintiff's contention that it was an intended third-party beneficiary, noting that the retainer agreement between Law Firm and its client refuted this. Thus, Plaintiff lacked standing to bring the legal malpractice action. Additionally, Plaintiff's complaint failed because it "did not sufficiently allege ultimate facts relating to [Law Firm and the lawyer]’s duties, which duties were breached, or how [Law Firm and the lawyer] breached the standard of care. Instead, [Plaintiff] simply alleged legal conclusions (e.g., that [Law Firm and the lawyer] had a duty to perform the legal services with the diligence and level of care expected of similarly-situated attorneys in South Florida; that [Law Firm and the lawyer] breached their duty by taking on a task that they were not capable of properly performing, failing to perform the task diligently or with the required skill and providing improper and incorrect legal advice.) . . . Such legal conclusions without more are insufficient to state a claim for legal malpractice." (Citations and footnotes omitted.)
Court erred in vacating order staying legal malpractice case while underlying case was still pending. Colodny, Fass & Talenfeld, P.A. v. Bal Bay Realty, Ltd., __ So.3d ___ (Fla. 3d DCA, No. 3D10-2662, 12/8/2010), 2010 WL 4962856. Plaintiff sued Defendants (a law firm and one of its lawyers) alleging legal malpractice in Defendants' representation of Plaintiff in a matter pending in circuit court. The court entered an agreed order staying the legal malpractice action pending the outcome of the underlying circuit court case. Several years later the court "vacated the stay of the legal malpractice action on its own motion and, by a separate order, set the matter for trial." The Third DCA quashed the order. "In vacating the stay and allowing the malpractice issue to proceed to trial before the underlying matter currently pending in the [circuit court] is resolved, we find that the trial court departed from the essential requirements of the law."
In legal malpractice case venue was not proper in county where negligent acts allegedly occurred because resulting damages did not occur there. Moscowitz v. Oldham, __ So.3d ___ (Fla. 5th DCA, No. 5D09-4466, 11/19/2010), 2010 WL 4669275. Plaintiffs sued Lawyer in Brevard County alleging legal malpractice. The alleged injury was a damage award entered in federal district court in Orange County due to entry of a default judgment. Plaintiffs asserted that venue was proper in Brevard County because the causes of action (legal malpractice and breach of fiduciary duty) arose there. Specifically, Plaintiffs pointed to a meeting in Brevard County at which one plaintiff allegedly was instructed by one of his lawyers to testify falsely by affidavit and in the federal court proceeding. Lawyer moved to dismiss on the basis that venue was not proper in Brevard County. The court denied the motion. The Fifth DCA reversed. The issue before the court was whether any of the causes of action accrued in Brevard County. For a legal malpractice claim, a plaintiff must prove: "(1) the attorney's employment, (2) the attorney's neglect of a reasonable duty, and (3) the attorney's negligence [as] the proximate cause of the client's loss." (Citations omitted.) In this case, "in asserting a claim for damages, [Plaintiffs'] complaint cited to the damage award which was entered against them in the United States District Court in Orlando and the resulting financial losses sustained as a result of that judgment. The complaint does not allege that the entry of the default judgment was caused by any of the improper acts committed by [the other attorney] during his meeting with [the plaintiff] in Brevard County; therefore, venue was not proper in Brevard County."
PROFESSIONALISM Florida Supreme Court vacates death sentence due to prosecutorial misconduct. Johnson v. State, 44 So.3d 51 (Fla. 2010). Defendant was convicted of murder in 1981. An informant testified at the trial and in a 1988 penalty phase trial. Apparently the prosecutor knew that the informant was acting on instructions from the state, which should have rendered his testimony inadmissible. "Yet, the prosecutor sought, successfully, to gain the admission of the informant's testimony through legal legerdemain . . ." Defendant alleged that he learned about the prosecutorial misconduct years after the fact, and sought postconviction relief. After his second successive motion for postconviction relief was denied, he appealed to the Florida Supreme Court. The Court vacated Defendant's death sentences and remanded for a new penalty phase proceeding. "[W]e conclude that [prosecutor] knew at the time of the suppression hearing that the testimony of [informant] and [investigator] was false and his own closing argument to the court was misleading. As a related matter, we conclude that [prosecutor] also knew at the time of the suppression hearing that [informant]'s testimony concerning [Defendant]'s statements was inadmissible." The Court ruled that the admission of the testimony was material in the penalty phase and that the state did not meet its burden of showing that the testimony was harmless beyond a reasonable doubt. The Court included: "This is not a case of overzealous advocacy, but rather a case of deliberately misleading both the trial court and this Court. It must be emphasized that in our American legal system there is no room for such misconduct, no matter how disturbing a crime may be or how unsympathetic a defendant is. . . . Lawlessness by a defendant never justifies lawless conduct at trial." (Citations omitted.)
“Professionalism” added tolist of subjects that may be tested on Florida bar exam. In re: Amendments to Rules of the Supreme Court Relating to Admissions to the Bar, __ So.3d ___, 35 Fla.L.Weekly S721 (Fla., No. SC10-979, 12/9/2010), 2010 WL 4977524. The Florida Supreme Court added “professionalism” to the list of subjects that may be tested on the Florida portion of the Florida bar exam. The Court amended the Rules of the Supreme Court Relating to Admissions to the Bar to also add Constitutional criminal procedure and juvenile delinquency to the "criminal law" area, Articles 3 and 9 of the Uniform Commercial Code, and dependency to the "family law" area. The amendments take effect on December 9, 2012.
Per Florida Supreme Court, party whose objections to lawyer misconduct at trial are sustained must move for mistrial to preserve issue for motion for new trial. Companioni v. City of Tampa, __ So.3d ___ (Fla., No. SC09-1800, 12/16/2010), 2010 WL 5110234. See discussion in “Trial Conduct” section.
Conduct resulting in finding of no probable cause can be used as aggravating factor in disciplinary case; Supreme Court suggests video of lawyer’s misconduct be shown for professionalism instruction. Florida Bar v. Ratiner, 46 So.3d 35 (Fla. 2010). Lawyer was accused of ethical violations arising from the taking of a deposition. A grievance committee found no probable cause as to all aspects of the conduct except Lawyer's acts involving a laptop computer. The Bar filed a formal complaint against Lawyer regarding the laptop incident. Lawyer was found guilty, and the referee recommended alternative sanctions of either disbarment or a 2-year suspension with conditions. The Supreme Court disapproved the sanctions recommendations "as not reasonably based on existing caselaw or standards [Florida Standards for Imposing Lawyer Sanctions]." Instead, the Court suspended Lawyer for 60 days and ordered that he be publicly reprimanded. Lawyer argued that the referee erred in using as an aggravating factor the aspects of his conduct at the deposition for which the grievance committee found no probable cause. The Court rejected this contention. "Contrary to the respondent’s argument, it is not necessary for misconduct to have been a basis for discipline in order for it to be considered in aggravation. Here, the respondent’s pattern of engaging in abusive conduct is relevant to the appropriate sanction to be imposed for the violations at issue in this case." It also appears that the Court may have permitted Lawyer's prior diversion to the Bar's practice and professionalism enhancement program to be considered in aggravation. Evidence as to this event was introduced in the disciplinary hearing. Finally, in a footnote the Court agreed with the referee that Lawyer's conduct provided a "glaring example" of unprofessional conduct that should be shown to lawyers and law students for instructional purposes: "The referee has suggested and we agree that members of the Bar and law students could view the video recording of the laptop incident in the context of a course on professionalism as a glaring example of how not to conduct oneself in a legal proceeding."
Fourth DCA criticizes lawyers for failure to comply with candor-toward-the-tribunal rule. Dept. of Children and Families v. D.B.D., 42 So.3d 916 (Fla. 4th DCA 2010). Mother (a lawyer with the Dept. of Children and Families ("DCF")) and Father (also a lawyer) were involved in a heated divorce and custody matter. On September 18 DCF filed a petition for a prevention of child abuse injunction pursuant to F.S. 39.504(1). A hearing was held that day. The hearing judge was not the family court judge who was familiar with the "hostile dynamics of this family." The hearing was held without reasonable notice to Father. Father attempted to appear by telephone, but DCF objected. None of the DCF lawyers informed the hearing judge of the family court proceedings, or that Mother's previous attempt to get an injunction was denied. The judge entered an injunction barring Father from any contact with his children, prevented him from being within 500 feet of the children's home or school, and ordered him to undergo substance abuse and psychological counseling. Although F.S. 39.504(2) calls for a hearing "on the next day of judicial business," the hearing was not held until October 20. It was held before the family court judge, who had ordered the injunction case transferred to her. The judge dismissed the injunction. The Fourth DCA affirmed, observing: "To anyone familiar with the concept of due process, the abbreviated September 18 'hearing,' consuming but eight pages of transcript, is shocking." At the October 20 hearing, DCF had failed to justify continuation of the injunction. In a footnote, the court was critical of the conduct of the DCF lawyers at the September 18 ex parte hearing: "We note that Florida Rule of Professional Conduct 4-3.3(c) provides: '(c) Ex Parte Proceedings. In an ex parte proceeding a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.' Had the lawyers involved advised [the judge who presided over the September 18 hearing] of the ongoing proceedings in the family court, he might well have consulted with the family court judge before signing the injunction."
Third DCA reverses substantial verdict based on improper argument by plaintiff's counsel. Fasani v. Kowalski, 43 So.3d 805 (Fla. 3d DCA 2010). Plaintiff was hurt when a granite tile in an elevator fell on her. Defendants admitted liability and the case was tried only on damages. The jury awarded Plaintiff more than $413,000. Defendants appealed, contending that they were entitled to a new trial due to improper argument by Plaintiff's counsel. The Third DCA agreed, reversing and remanding for a new trial on the issues of past medical expenses [$13,434 of the judgment] and past [$100,000] and future [$150,000] pain and suffering. Among other things, Plaintiff's counsel: disparaged Defendant's defense of the case; suggested that Defendants be punished for contesting the claim; referred to Defendants' "corporate greed;" suggested that the accident scene was tampered with; argued that the jury had to punish Defendants; and made "value of life" arguments. Some of these arguments were not objected to at trial. Nevertheless, the court concluded: "Although 'a single improper remark or argument might not be so prejudicial as to require reversal' . . . we find here that the cumulative effect of [Plaintiff]’s counsel’s numerous improper comments and arguments operated to deprive the appellants of a fair trial." (Citations omitted.)
Third DCA reverses second substantial verdict due to improper argument by same lawyer. Chin v. Caiaffa, 42 So.3d 300 (Fla. 3d DCA, No. 3D08-176, 8/4/2010). In 2008 the Third DCA reversed a verdict due to improper argument by Lawyer. SDG Dadeland Associates, Inc. v. Anthony, 979 So.2d 997 (Fla. 3d DCA 2008). Improper arguments by Lawyer again caused the court to reverse a verdict for Lawyer's client (this time in excess of $1.3 million). The court noted that the case was "meritorious" (defendant caused the accident and trial was on damages only), but concluded that "[u]nfortunately, plaintiff’s counsel engaged in litigation tactics, which, taken individually and in combination, indisputably require reversal." As in the prior case, Lawyer engaged in an improper attack on the defendant and its counsel." Lawyer’s "improper litigation tactics" included: "1. Improper appeal to the passion and sympathy of the jury in opening statement. 2. Improperly convincing the trial judge to limit defense counsel’s cross-examination of [plaintiff]’s expert, []. 3. Improper character attack during cross-examination of main defense expert, []. 4. Improper and prejudicial closing argument." Among other things, Lawyer referred to his client's alleged debt due to medical expenses, referred to the jurors writing a "blank check," did not keep closing argument confined to the evidence and inferences drawn from the evidence, used a "Golden Rule" argument, and attacked the defense as "frivolous" and "try[ing] to fool you." The court concluded: "[W]e close by reminding all counsel, whoever they might be, that inflammatory and prejudicial comments and improper conduct – including advancing legal arguments which counsel know are not supportable – will not be condoned by this Court." (Emphasis by court.)
Fourth DCA reverses criminal conviction due to prosecutor's improper closing argument. Wicklow v. State, 43 So.3d 85 (Fla. 4th DCA 2010). Defendant was convicted of robbery. The Fourth DCA reversed and remanded for a new trial. "The cumulative effect of improper prosecutorial comments in closing argument which elicited sympathy for the victim, suggested improper defense tactics, disparaged defense counsel and improperly bolstered the credibility of a key witness all combine to compel this result." Attacks on opposing counsel can result in reversal even when they are not objected to: "Although defense counsel raised objections to these comments which the court overruled, it is worthy of note that it is never acceptable for one attorney to effectively impugn the integrity or credibility of opposing counsel before the jury; even in the absence of a contemporaneous objection, such comments about opposing counsel made during closing argument are fundamentally erroneous."
Fifth DCA criticizes lawyer for filing appeal relating to plea process that he participated in without objection. Barreto v. State, __ So.3d ___ (Fla. 5th DCA, No. 5D09-3568, 12/17/2010), 2010 WL 5128135. Represented by Lawyer, Defendant pleaded no contest. She then appealed, contending that her plea was involuntary because she was under the influence of prescription medication at the time. The Fifth DCA affirmed, pointedly criticizing Lawyer and his conduct in the matter. After 3 extensions of time to prepare his initial brief, Lawyer's "entire argument" consisted of 4 short paragraphs (quoted in the court's opinion). Lawyer did not file a motion to withdraw the plea with the trial court, which resulted in waiver of appellate review of plea-related issues. Turning to other aspects of Lawyer's conduct, the court stated: "More fundamentally, we are troubled that counsel, an officer of the court, would participate without comment or objection in what he now suggests was a faulty plea process. Counsel, along with his client, signed the plea agreement that assured the court that [Defendant] did 'not suffer from any physical or mental disabilities to the degree that I [Defendant] am incapable of understanding this agreement, the nature of the proceeding against me, or assisting my lawyer in my behalf. I am not under the influence of alcohol or any drug at this time.' Likewise, during the plea colloquy, counsel never expressed any concern regarding his client’s ability to enter the plea. If counsel had any notion that [Defendant] was under the influence of prescription medication to the extent that she could not voluntarily and knowledgably enter a plea, he was obliged to alert the trial court. And now, with no preserved error (and likely no error at all) and after three extensions of time, we receive a wholly unhelpful brief. This appeal was a waste of this Court’s time and [Defendant]’s money."
Criminal defense lawyer cautioned against repeatedly raising "non-meritorious" arguments court has rejected before. Williams v. State, 45 So.3d 14 (Fla. 1st DCA 2010). Lawyer represented a criminal defendant in an appeal. The First DCA affirmed, rejecting the arguments presented by Lawyer and warning Lawyer: "Counsel for Appellant has raised these same arguments in numerous cases before this court . . . We affirmed all of these cases. It is one thing for counsel to zealously advocate a colorable legal claim on behalf of a client; it is quite another for counsel to continue to raise the same non-meritorious arguments in the face of adverse rulings, which is what counsel for Appellant is doing at this point. Accordingly, counsel for Appellant is cautioned against continuing to raise these same arguments absent a favorable ruling from a higher court or a change in the law." (Citation and footnotes omitted.)
Conflict rule governing concurrent representation of clients (RPC 4-1.7) does not permit analysis of whether conflict is "material;" engaging in conduct that ignores duty of loyalty would be “unseemly.” Lincoln Associates & Construction, Inc. v. Wentworth Construction Co., Inc., 26 So.3d 638 (Fla. 1st DCA 2010). See discussion in “Conflicts of Interest” section.
Fifth DCA concurring opinion points out potential conflict when lawyer represents client in arguing for reversal of 57.105 sanctions order against both. Geiger v. Spurlock, 30 So.3d 704 (Fla. 5th DCA 2010). See discussion under “Conflicts of Interest” section.
Civil theft judgment against lawyer who left law firm and took clients with him reversed, despite conduct called “loathsome” by DCA. Winters v. Mulholland, 33 So.3d 54 (Fla. 2d DCA 2010). See discussion in “Law Firms” section.
Third DCA criticizes law firm's actions but rules that firm is protected by litigation immunity. Fernandez v. Haber & Ganguzza, LLP, 30 So.3d 644 (Fla. 3d DCA 2010). Law Firm represented two condominium associations opposed to unit purchases by a person who allegedly was trying to acquire control. Law Firm recorded a lis pendens and filed suit to enjoin a proposed sale. A defendant sued Law Firm alleging tortious interference with the proposed sale. Law Firm "defended on the doctrine that the actions taken by the firm were privileged because the firm was only acting at the client’s request. . . . [Law Firm] admitted that the lis pendens was filed to prevent the transfer of the subject unit. [Law Firm] moved for summary judgment, claiming that the firm had a justifiable privilege to act as it did, as a matter of law." The court "concluded that because the lis pendens was part of a lawsuit, there was qualified immunity where no malice shown on the firm’s part" and entered summary judgment for the firm. The Third DCA affirmed, citing, inter alia, Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380 (Fla. 2007). The lis pendens was filed during the course of a judicial proceeding and at the direction of Law Firm's client. Thus, its filing was privileged and could not be the basis of an action for tortious interference. The court criticized Law Firm’s conduct, opening its opinion by stating that it did not agree with the actions taken by Law Firm, and closing by stating: "Although we think that the behavior of the [] law firm may have been highly unethical, we must affirm."
Court makes UPL observation and disciplinary referral to Florida Bar in appellate opinion. Opella v. Bayview Loan Servicing, LLC, __ So.3d ___ (Fla. 3d DCA, No. 3D09-2921, 11/24/2010), 2010 WL 4740202. See discussion in “Unauthorized Practice of Law” section.
Concurring opinion from Fifth DCA criticizes prosecutor's actions and attitude in connection with improper closing argument. Lumpkin v. State, 36 So.3d 877 (Fla. 5th DCA 2010). The Fifth DCA per curiam affirmed a criminal conviction, apparently on a harmless error basis. One judge wrote a concurring opinion criticizing the prosecutor's conduct, observing that the prosecutor's error in making a closing argument that attempted to shift the burden of proof "was so basic it was elementary" and stated that "[a] modicum of research would have revealed a plethora of case law disapproving of the prosecutor's comment." (Footnotes omitted.) The judge continued: "What is also disconcerting was the prosecutor's cavalier attitude toward what constituted a potentially serious error. In response to the trial judge's concerns, the prosecutor responded, 'Then grant the motion [for mistrial], Your Honor, because that's what it sounds like you are doing. I'm not going to waste another four hours on this case, it sounds like that's where you are leading.' Many a trial judge would have accepted the prosecutor's invitation."
PUBLIC OFFICIAL ETHICS AND PUBLIC RECORDS Former government official's conviction of conspiracy to commit mail fraud supports forfeiture of retirement benefits under public ethics laws. Jenne v. Fla. Dept. of Management Services, 36 So.3d 738 (Fla. 1st DCA 2010). Former Sheriff pleaded guilty in federal court to one count of conspiracy to commit mail fraud and 3 counts of filing a false tax return. The crimes "were committed over the course of several years in a series of unlawful transactions." When Former Sheriff applied for state retirement benefits, the Department of Management Services denied them on the basis that Former Sheriff had forfeited them as a result of his federal convictions. The First DCA affirmed.
Retired public employee's benefits may be forfeited for crimes occurring while employed, even though not convicted until after retirement. Garay v. Dept. of Management Services, __ So.3d ___, 35 Fla.L.Weekly D2531 (Fla. 1st DCA, No. 1D09-4865, 11/17/2010), 2010 WL 4628910. Garay was employed by Miami-Dade County. He retired in October 2002 and began drawing retirement benefits. In April 2003 Garay pleaded guilty to crimes involving misconduct at his county employment. The Department of Management Services, Division of Retirement ("FRS") obtained an order determining that Garay's retirement benefits were to be forfeited pursuant to F.S. 112.3173 (2001). The First DCA affirmed, rejecting Garay’s argument that FRS could not require forfeiture because he had already retired and was receiving benefits. Florida law "expressly provides for forfeiture of retirement benefits whenever FRS receives notice of criminal activity which occurred while a person was employed in the public trust. . . . Under section 112.3173(3), it is clear that the time the offense is committed controls forfeiture, not the time of the ultimate conviction."
Florida Commission on Ethics publishes opinion addressing ethics law restrictions on Attorney General who leaves office. Florida Commission on Ethics Opinion CEO 10-22. The Attorney General of Florida, who was leaving office in January 2011, asked the Florida Commission on Ethics to opine on this question: "What restrictions do the Sunshine Amendment to the State Constitution, Article II, Section 8(e), and Section 112.313(9)(a)3, Florida Statutes, place on an Attorney General leaving office?" The Commission provided its answer in a comprehensive opinion. The Commission began by noting that the Attorney General serves "not only as the chief state legal officer and head of the Department of Legal Affairs, but also on the Cabinet and a variety of other boards." (Footnotes omitted.) The Commission then reviewed the applicable law, including: Fla.Constit. Art. II, Sec. 8(e); F.S. 112.313(9)(a)3; F.S. 112.313(9)(a)(4); and F.S. 112.313(14). The Commission summarized: Fla.Constit. Art.II, Sec. 8(e) and F.S. 112.313(9)(a)3 " prohibit an elected state officer from personally representing another person or entity for compensation before the government body or agency of which the individual was an officer or member for a period of two years following vacation of office. These provisions would prohibit a former Attorney General from engaging, for two years, in representations of persons or entities, for compensation, before the Office of the Attorney General, the Governor and Cabinet, either sitting as a board or individually, and boards and commissions on which the Attorney General actually serves. It would not prohibit representations before the Elections Commission, employees of the Governor's office or State agencies headed by other Cabinet members, or boards to which he has assigned a designee."
Passenger Rail Commission member who is in law firm has no conflict of interest if law firm represents clients seeking to do business with FDOT. Florida Commission on Ethics Opinion CEO 10-20. Member, a shareholder in Law Firm, is on the Florida Statewide Passenger Rail Commission. Law Firm "represents clients that are seeking to do business with FDOT [Florida Dept. of Transportation] or are impacted by a route for a specific project, by the location of a specific transportation facility, or by the acquisition of right-of-way." Member asked the Florida Commission on Ethics whether this presented a conflict of interest under state ethics laws. The Commission answered that it did not, relying on F.S. 112.313(7)(a). The Commission noted that a lawyer has a contractual relationship with each of the clients of the lawyer's law firm. The Commission then concluded that the first part of F.S. 112.313(7)(a) prohibits a member of the Rail Commission from having a contractual relationship with an entity doing business with his agency or is subject to the regulation of his agency. The "agency" for these purposes is the Rail Commission rather than FDOT. The Rail Commission and its members are prohibited from involvement in the day-to-day operations of FDOT and may not take part in awarding contracts, selecting consultants or contractors, selecting routes for projects, or acquiring rights of way. Law Firm clients would not be seeking to do business with Member's "agency," the Rail Commission. As to the second part of the statute, the Commission concluded that, "given the legal limitations on the Rail Commission's authority and its independence from FDOT, do we perceive any continuing or frequently recurring conflict or impediment to the full and faithful discharge of public duties, arising out of the firm's representation of clients in these types of matters."
Florida Commission on Ethics opines on lawyer's service on city economic development commission and his firm's representation of clients who deal with commission. Florida Commission on Ethics Opinion CEO 10-24. A lawyer who practices in a law firm was considered for appointment to a Florida city's economic development commission. Several questions were presented to the Florida Commission on Ethics regarding the law firm's representation of clients who may have dealings with the commission. The published headnote summarizes the opinion's conclusions: "A person who is an attorney in a law firm would not have a prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, were he to become a member of a city's economic development commission, provided that his firm does not work on a client's application for an incentive from the commission; a prohibited conflict under Section 112.313(7)(a) would not be created were a client of the firm to apply to a subordinate board of the commission for a permit, provided a denial of the application by the subordinate board is not appealed to the commission and provided that the firm does not work on the permit application to the subordinate board; and a prohibited conflict would not be created were a client to apply to the subordinate board for a zoning waiver or variance, provided the firm does not work on the waiver/variance matter for the client. In addition, we find that the commission is not an "advisory board" for purposes of Section 112.313(12), Florida Statutes. Also, the member must comply with Section 112.3143, Florida Statutes (the voting conflicts law), regarding votes/measures/matters of the commission concerning himself, his firm, his firm's clients, and certain others, whether or not his firm works on the matter for the client."
Under state ethics laws, former assistant state attorney may represent private clients against state attorney's office. Florida Commission on Ethics Opinion CEO 10-14. An Assistant State Attorney ("the ASA") is retiring soon. The ASA represents the state in child dependency cases. Upon retirement, the ASA would like to take such cases against the state attorney's office as a private attorney. The ASA asked the Florida Commission on Ethics whether F.S. 112.313(9) would prohibit this. The Commission decided that it would be permitted. Under F.S. 112.313(9)(a)4, the ASA would be precluded from representing anyone for compensation against the agency that formerly employed the ASA for 2 years after leaving the state attorney's employ. That provision only applies if the ASA is considered an "employee" of the state attorney's office as that term is defined in the statute. The Commission has not previously considered whether Assistant State Attorneys are “employees” as defined in F.S. 112.313(9)(a)2.a. The Commission noted that "the salaries and benefits of Assistant State Attorneys are not 'set by the department [of Management Services]'" and, therefore, an assistant state attorney does not meet the statutory definition of "employee." The Commission concluded: "[W]e find that you will not, upon your retirement from the State Attorney's Office, be prohibited by Section 112.313(9), Florida Statutes, from representing parents in dependency cases, where the State Attorney's Office represents the State in such cases. Please note that this opinion does not address any possible conflicts of interest that may exist under the Rules Regulating the Florida Bar, since we do not administer the standards of conduct applicable to Florida Bar members."
Commission on Ethics discusses how 2 year post-public-employment representation restriction applies to former SES senior attorney of Agency for Workforce Innovation. Florida Commission on Ethics CEO 10-13. A former employee ("the inquirer") of the Agency for Workforce Innovation ("AWI") asked the Florida Commission on Ethics for advice regarding application of the 2-year post-public employment representation restriction of F.S. 112.313(9)(a)4. The inquirer worked for AWI for two and a half months, serving in the Selected Exempt Service ("SES") as a Senior Attorney. After leaving AWI, the inquirer wishes to represent clients before the Unemployment Appeals Commission ("UAC") and its "lower tribunal." First, the Commission reviewed the statute and concluded that the inquirer was in a covered position (SES) while at AWI and thus was subject to the 2-year restriction on representing clients before the inquirer's former agency. Next, the Commission concluded that the UAC is a different "agency" from the inquirer's employer, AWI, and that the inquirer was "not prohibited from representing clients before UAC, per se. As to your representation of clients before the UAC's 'lower tribunal,' what you also refer to as the 'unemployment compensation appeals division [of AWI],' we find that you are restricted for the two-year period. Unlike regarding UAC, we have discovered no statute separating the lower tribunal from AWI. Indeed, information on AWI's website (www.floridajobs.org) shows the lower tribunal to be a part of AWI . . ." The Commission noted the practical difficult of attempting to represent clients "without running afoul of the two-year restriction if [the] representation involves contact with AWI personnel who provide support or assistance to UAC." The Commission summarized: "[W]e find that your 'agency' for purposes of the restriction is the whole of AWI, and is not UAC, but that any conduct of yours within the meaning of 'representation,' vis-à-vis AWI or its personnel (even its personnel supporting UAC), is prohibited by the restriction."
Florida Supreme Court amends rules governing public access to judicial branch records. In re: Amendments to Florida Rule of Judicial Administration 2.420 and the Florida Rules of Appellate Procedure, 31 So.3d 756 (Fla. 2010). After extensive study and input from interested committees and groups, the Florida Supreme Court adopted amendments to rules governing public access to judicial branch records. The Court amendments "address procedures for the clerks [of court] to identify a narrow set of records as confidential, procedures for sealing and unsealing records, specific procedures targeted at criminal cases, and related appellate procedures." The first set of amendments "provide a mechanism to protect confidential information in court records from public view." The Court considered this necessary because of its "ongoing concern that we not sacrifice the important goal of protecting those records that are confidential" while broadening its efforts to provide the public with electronic access to court records. The second set of amendments "deal specifically with the issue of sealing and unsealing court records both in criminal and civil cases. The proposals [for amendments] refine the procedures developed in 2007 for sealing and unsealing noncriminal trial court records and specifically include procedures targeted at criminal and appellate court records. In conjunction with these proposals, the Court also considers related amendments to the Rules of Appellate Procedure, which clarify that requests to seal appellate court records are governed by [Judicial Administration] rule 2.420 and provide for review of court orders granting access to judicial branch records and proceedings, in addition to orders denying access." New Fla.R.Jud.Admin. 2.420(d), "Procedures for Determining Confidentiality of Court Records," takes effect October 1, 2010. The other amendments took effect immediately.
State Attorney's trial notes not subject to disclosure as public records, rules Florida Supreme Court. Geralds v. State, __ So.3d ___, 35 Fla.L.Weekly S503 (Fla., Nos. SC06-761, SC07-716, 9/16/2010), 2010 WL 3582955. Defendant was convicted of first-degree murder. He appealed the circuit court’s order denying his motion for post-conviction relief filed under Fla.R.Crim.P. 3.851. Defendant argued that the court erred in denying public records requests that he had made pursuant to Fla.R.Crim.P. 3.852. The Supreme Court rejected the contention that Defendant "was denied access to public records because the State did not produce its trial notes." The Court determined that "[t]he State's trial notes are not public records subject to disclosure."
Audio recordings of high-profile defendants' phone calls made by sheriff's office are not public records subject to disclosure. Bent v. State, __ So.3d ___, 35 Fla.L.Weekly D2167 (Fla. 4th DCA, No. 4D10-2726, 9/29/2010). Two minors charged with attempted murder in a high-profile case were in jail. The sheriff's office ("BSO") recorded Defendants' phone calls. A newspaper filed a public records request seeking release of the audio recordings. Defendants moved for protective order. The court granted the motion in part, directing BSO to listen to the recordings and release those not containing admissions. The Fourth DCA quashed the disclosure order, agreeing that "audio recordings of the defendants’ phone calls are not public records subject to release." F.S. 119.011(2) "defines public records as 'all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.'” (Emphasis by court.) Because the phone calls "clearly are not public records," the question was "whether BSO’s recording of the calls converts them to public records." The court noted that not everything generated or received by a public agency is a "public record," citing State v. City of Clearwater, 863 So.2d 149 (Fla. 2003). BSO was not using the content of Defendants' calls in its transaction of public business. "Although monitoring of inmate calls for security purposes is related to official business of the jail, maintaining recordings of purely personal calls is not. The recordings at issue are personal phone calls, as opposed to records generated by BSO, such as mail logs or logs of phone numbers called." Nor did the fact that Defendants' were warned that law enforcement could listen to their calls convert the recordings into public records. "Inmates receive no notice that calls may be disclosed to the general public. The expectation that a deputy or state attorney may listen to a call is very different from an expectation that anyone and everyone could listen to the calls."
City's eventual production of meeting minutes months after their request did not moot issue of City's violation of public records law. Grapski v. City of Alachua, 31 So.3d 193 (Fla. 1st DCA 2010). On the night of a City Commission election (April 11, 2006), the Board of Canvassers met to canvass the election. A City employee prepared meeting minutes. Two citizens ("Requesters") attended and observed "what they perceived to be improprieties." The City set a regular City Commission meeting for May 15, and the Consent Agenda for that meeting included approval of the April 11 meeting minutes. Requesters made a public records request for the April 11 meeting minutes. It was denied, as were other requests for the minutes before the May 15 meeting. Nine months after their initial public records request, Requesters brought an action alleging that City's failure to provide the requested minutes before the May 15 meeting violated F.S. 119.07 and Fla.Constit. Art. I, Sec. 24(a). The court concluded that public records law "cannot be used to compel production of a document already provided to the requesting party before filing the lawsuit. In other words, the court determined the public records claim was moot by the time appellants filed the initial complaint." The First DCA reversed. The minutes of the April 11 meeting were a public record, as a "final work product of the Board" rather than "a preliminary draft or note." The City had a duty to produce the minutes after receiving the public records request, and the City's "unjustified refusal denied any realistic access for the only purpose appellants sought to achieve – review of the Minutes before the Commission meeting." Production of the minutes later did not cure the City's error. "Accordingly, [Requesters'] receipt of a copy of the Minutes – months after their requests and clearly after their primary need passed – did not moot the issue of the City’s unlawful refusal to fulfill its duty to allow reasonable inspection and copying." The court explained: "A holding otherwise would allow a covered body to delay meaningful access to public records, only to disclose them belatedly and after the utility of such records had faded. In that instance, an assertion of mootness because the violation had been 'cured' once the requesting party gained access to the records would disguise a breach of public records law. The express language in the statutes and Florida Constitution demonstrates the City failed to comply with public records law, and the damage to appellants was not mooted."
Public Records Act exemptions for undercover police identities not lost merely because they were disclosed to criminal defendant during discovery. Rameses, Inc. v. Demings, 29 So.3d 418 (Fla. 5th DCA 2010). During discovery in a criminal prosecution of nightclub dancers, the state disclosed unredacted copies of undercover surveillance video recordings that showed the faces of undercover law enforcement personnel. Related administrative charges were filed against the entity where the dancers worked (the "Club"). After the criminal and administrative cases were concluded, the Club filed a public records request with the Sheriff seeking unredacted copies of the video. The Sheriff offered to provide copies that were redacted to obscure the faces of the undercover personnel. The Club objected and filed suit. Both the Club and the Sheriff moved for summary judgment. Sheriff conceded that the recordings were public records but argued that several exemptions permitted production only if the recordings were redacted to conceal the identities. The Club contended that because "unredacted tapes had been released to the defendant dancers during discovery in the criminal proceedings, the exemptions no longer applied." The court granted summary judgment for Sheriff, "concluding that the Sheriff was authorized to 'obscure the faces' of all the undercover MBI officers prior to producing the recordings pursuant to the exemptions contained in section 119.071(4)(c) [exempts any "information revealing undercover personnel of any criminal justice agency"] and (4)(d) [exempts "photographs of active or former law enforcement personnel"]." The Fifth DCA affirmed. "We hold that the disclosure to a criminal defendant during discovery of unredacted versions of undercover police surveillance recordings does not destroy, in a public records context, the exemptions contained in section 119.071 for information relating to the identity of undercover law enforcement personnel."
Confidentiality requirements in Law Enforcement Officers' Bill of Rights apply whenever officer faces adverse job action. Fraternal Order of Police v. Rutherford, __ So.3d ___ (Fla. 1st DCA, No. 1D10-1173, 11/17/2010), 2010 WL 4628902. When police officers are involved in an incident where force is used, the sheriff's office policy provides that an internal investigation will be made by the office's Response to Resistance Board (the "Board"). The sheriff's office treats these investigations as open to the public. The Fraternal Order of Police ("FOP") petitioned the circuit court for declaratory and injunctive relief, arguing that this open meeting format violates the confidentiality provisions of the "Law Enforcement Officers' Bill of Rights," F.S. 112.532(4)(b) and 112.533(2)(a) (2008). The circuit court ruled that "the confidentiality provision in section 112.533(2)(a) applies only when a police agency receives a written complaint and commences an investigation based on that written complaint, not when a law enforcement agency conducts an investigation pursuant to its internal operating procedures. The circuit court also found the confidentiality provision in section 112.532(4)(b) inapplicable to Board investigations because that section states that the 'contents of the complaint and investigation' must be kept confidential, yet the Board can commence an investigation without a complaint." FOP appealed. The First DCA reversed. "[A]n investigation within the meaning of section 112.532(4)(b) occurs whenever a law enforcement or correctional officer faces possible dismissal, demotion, or suspension without pay, and because the Board’s investigation may result in such discipline, the investigation triggers the confidentiality protections in section 112.532(4)(b)." Accordingly, the court did not reach "the issue of whether a written complaint is required in order to trigger confidentiality under section 112.533(2)(a)."
First DCA rules that Department of Health's confidential investigative records are not subject to discovery administrative or court proceedings. Florida Dept. of Health v. Kenneth D. Poss, D.P.M., 45 So.3d 510 (Fla. 1st DCA 2010). Doctor, a defendant in license disciplinary proceedings brought by the Department of Health, sought production of documents in the possession of an adverse expert witness. The Department objected, arguing that disclosure of the documents would violate F.S. 456.073(10), "where the information sought concerned disciplinary investigations by the Department in which there had been neither a finding of probable cause nor a waiver of confidentiality by the subject of the investigation." The ALJ ordered production of records that included some related to cases in which there had been no probable cause finding and no confidentiality waiver. The First DCA quashed the order as it applied to documents "relating to complaints and investigations against physicians other than [Doctor] where no probable cause has been found and no waiver of confidentiality exists." The records sought were public records under F.S.. 119.011(12) and so are subject to inspection and copying unless a statutory exemption applies. "Section 456.073(10), Florida Statutes (2009), provides such an exemption for information the Department obtains during a disciplinary investigation . . ." The court pointed out that exemption from disclosure under section 119.07 does not necessarily mean that the record is also exempt from discovery.
Florida Supreme Court rules that Sarasota County did not violate Sunshine Law during negotiations to relocate Baltimore Orioles spring training. Sarasota Citizens for Responsible Government v. City of Sarasota, __ So.3d ___, 35 Fla.L.Weekly S627 (Fla., No. SC10-1647, 10/28/2010), 2010 WL 4237584. The City of Sarasota and Sarasota County negotiated an agreement to move the Baltimore Orioles' spring training activities to Sarasota. A group ("Citizens") sued the City and the County, alleging violations of the Sunshine Law (F.S. Ch. 286) and contesting the validity of bonds proposed for issuance by the City and the County in furtherance of their agreement with the Orioles. After an adverse ruling in the trial court, Citizens appealed the judgment concerning alleged Sunshine Law violations by the County. The Florida Supreme Court affirmed, finding no merit in 3 arguments advanced by Citizens. Negotiation team. Deputy County Administrator Bullock was the point person for negotiations with the Orioles. In this role, he consulted with various individuals ("negotiations team"). Citizens argued that the negotiations team was a board or commission subject to the Sunshine Law. The trial court and Supreme Court concluded otherwise. The Sunshine Law applies to committees subordinate to governmental authorities when decision-making authority has been delegated to them. "In contrast, a committee is not subject to the Sunshine Law if the committee has only been delegated information-gathering or fact-finding authority and only conducts such activities." (Citations omitted.) The negotiations team had no decision-making authority. "Advisory committees functioning as fact-finders or information gatherers are not subject to section 286.011." One-on-one staff briefings of county commissioners. The Court rejected Citizens' argument that private one-on-one staff briefings of county commissioners violated the Sunshine Law. Bullock, by himself and assisted by other County staff, held one-on-one informational briefings with board members prior to the board's discussion at its public meeting. Although formal or informal meetings between 2 or more board members where the members deal with board matters would violate the Sunshine Law, "public officials may call upon staff members for factual information and advice without being subject to the Sunshine Law's requirements." Email discussions among commissioners. Citizens also asserted "that the trial court erred by ruling that any violations committed in e-mail discussions between board members were cured by the Board’s public meetings that were held up to and including July 22, 2009." Again, the Court disagreed and affirmed. "Based upon the fact that, subsequent to the last possibly violative e-mail, multiple proposals were discussed and rejected before one was finally approved, it is clear the Board took independent, final action in the sunshine regarding Orioles spring training in Sarasota. . . . Therefore, any possible e-mail violations were cured."
Company's customer lists produced to state agency are trade secrets exempt from disclosure under public records law. James, Hoyer, Newcomer, Smiljanich, & Yanchunis, P.A. v. Rodale, Inc., 41 So.3d 386 (Fla. 1st DCA 2010). Company produced documents to the Office of the Attorney General (the "AG"), in response to an investigative subpoena. Law Firm, "a self-described investigative law firm specializing in consumer protection issues," filed a public records request seeking the documents. Company sought declaratory relief and an injunction, asserting that the documents were exempt from public records disclosure as "trade secrets." Agreeing with Company, the court ruled that the documents were exempt as trade secrets under F.S. 815.045 (2009), even though they were in the A.G.’s hands. The First DCA affirmed in part and reversed in part. All of the documents except for customer complaints to Company and Company's responses were "trade secrets" and so were exempt from disclosure as public records. The fact that customer lists "are bought and sold proves their commercial value – not the contrary – and suggests the lack of ready public availability. We affirm the trial court’s ruling on this point, as well as its ruling that [Company]’s contracts, reports and communications with and from its suppliers and other vendors constitute trade secrets."
Open meetings law gives citizens right to attend, but not to speak, at public meetings. Keesler v. Community Maritime Park Associates, Inc., 32 So.3d 659 (Fla. 1st DCA 2010). Citizens filed suit seeking the right to speak at meetings of a not-for-profit corporation ("CMPA") that was charged by a Florida city with overseeing development of waterfront property. CMPA is subject to the Sunshine Law, F.S. 286.011(1). The court granted summary judgment for CMPA, ruling that the Sunshine Law gave Citizens "the right to be present but not to speak at CMPA meetings." Citizens appealed. The First DCA affirmed. The issue "is not whether CMPA should give citizens an opportunity to speak and provide input at its meetings, but rather whether the Sunshine Law provides citizens the right to speak at public meetings." (Emphasis by court.) The court concluded: "[Citizens] have failed to point to any case construing the phrase 'open to the public' [in the Sunshine Law] to grant the public the right to speak, and in light of the clear and unambiguous language in [Wood v.] Marston [442 So.2d 934 (Fla. 1983)] (albeit dicta), we are not inclined to broadly construe the phrase as granting such a right here. Rather, we agree with the trial court that the remedy [Citizens] are seeking in this case is more appropriately left to the legislative process or the local public officials to whom the CMPA board members are accountable."
RULES AND ETHICS OPINIONS Rule changes generally. See “Rule Changes (Adopted and Proposed)” section at beginning of materials.
Florida Supreme Court amends rules governing public access to judicial branch records. In re: Amendments to Florida Rule of Judicial Administration 2.420 and the Florida Rules of Appellate Procedure, 31 So.3d 756 (Fla. 2010). See discussion in “Public Official Ethics and Public Records” section.
Florida Bar approves opinion requiring lawyers to protect confidentiality of client information stored on devices like copiers, scanners, fax machines, cell phones, and flash drives. Florida Ethics Opinion 10-2. See discussion in “Confidentiality and Privileges” section.
Florida Bar approves opinion addressing when lawyers may communicate with employees of state agency without consent of agency's counsel. Florida Ethics Opinion 09-1. See discussion in “Communication” section.
“Professionalism” added to list of subjects that may be tested on Florida bar exam. In re: Amendments to Rules of the Supreme Court Relating to Admissions to the Bar, __ So.3d ___, 35 Fla.L.Weekly S721 (Fla., No. SC10-979, 12/9/2010), 2010 WL 4977524. See discussion in “Professionalism” section.
TRIAL CONDUCT Florida Supreme Court vacates a death sentence due to prosecutorial misconduct. Johnson v. State, 44 So.3d 51 (Fla. 2010). See discussion in “Professionalism” section.
Per Florida Supreme Court, party whose objections to lawyer misconduct at trial are sustained must move for mistrial to preserve issue for motion for new trial. Companioni v. City of Tampa, __ So.3d ___ (Fla., No. SC09-1800, 12/16/2010), 2010 WL 5110234. Exercising its conflict jurisdiction, the Florida Supreme Court addressed "whether a trial court may grant a post-verdict motion for a new trial based on attorney misconduct that occurred during the course of trial, when contemporaneous objections to the misconduct were sustained, but no motion for mistrial was made." The Court held that "when a party objects to instances of attorney misconduct during trial, and the objection is sustained, the party must also timely move for a mistrial in order to preserve the issue for a trial court's review of a motion for a new trial." The Court concluded that the process for preserving the issue for appellate review and preserving the issue for the trial court's review should be the same. The Court reasoned that its decision promoted judicial economy.
Court erred by assessing costs against State Attorney's Office as sanction for criminal case discovery violation. State v. Nelson, 27 So.3d 758 (Fla. 3d DCA 2010). See discussion in “Fees” section.
JCC does not have statutory authority to strip employer/carrier of defenses on ground that its lawyer engaged in fraudulent conduct. McArthur v. Mental Health Care, Inc./Summit Claims Center, 35 So.3d 105 (Fla. 1st DCA 2010). A Judge of Compensation Claims ("JCC") denied a workers’ compensation Claimant's claims for benefits because she engaged in fraud. Claimant appealed, contending that the JCC erred by not ruling on Claimant's assertion that the employer/carrier ("E/C") and its lawyer "committed fraud in their handing of this matter." The First DCA affirmed. F.S. 440.105(4)(b)1. provides that it is unlawful for any person to "knowingly make, or cause to be made, any false, fraudulent, or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment" under Chapter 440. The statute further provides that an employee who commits fraud may have his or her claims denied by the JCC. There is no corresponding provision authorizing the JCC to "determine whether an attorney or carrier has violated section 440.105, nor does it give the JCC any authority to impose sanctions for such violations." The court concluded: "We certainly do not condone fraud by anyone involved in the workers’ compensation system. But it is not within our power to read into chapter 440 authority that the Legislature has not, for whatever reason, given to the JCCs." (Footnote omitted.)
Lawyers and client sanctioned for appealing non-appealable order, and court notes that client may have conflict-free counsel when sanction amount is determined on remand. Maradriaga v. 7-Eleven, 35 So.3d 109 (Fla. 1st DCA 2010). See discussion in “Conflicts of Interest” section.
First DCA imposes 57.105 fees against party and his lawyer who sought certiorari review after unsworn motion to disqualify JCC was denied. Skarka v. Lennar Homes, Inc./Broadspire, 29 So.3d 1170 (Fla. 1st DCA 2010). See discussion in “Fees” section.
Fifth DCA approves sanctions against parties and their counsel after the parties failed to appear at court-ordered mediation. Mash v. Lugo, __ So.3d ___, 35 Fla.L.Weekly D2660 (Fla. 5th DCA, No. 5D10-2256, 12/3/2010), 2010 WL 4903817. Mash moved for sanctions against his opponents (Lugo and Irizarry) and their lawyer (Muniz) after the opponents failed to appear for a court-ordered mediation. The opponents responded that their insurer, Aequicap, "held the exclusive right to decide to defend or settle any claim or suit within policy limits, that Lugo and Irizarry did not have the authority to bind the insurer to any settlement, and that lawyer Muniz had full settlement authority on behalf of the insurer." No representative of Aequicap attended the mediation. The Fifth DCA granted the motion for sanctions. Muniz’s claim that he had settlement authority did not excuse the failure of Lugo and Irizarry and a representative of Aequicap to attend the mediation. Under Fla.R.App.P. 9.720(b), "if a party fails to appear at a duly noticed mediation conference without good cause, the court may impose sanctions against the party failing to appear."
Court erred in denying continuance where party was unemployed and her counsel withdrew on eve of trial. Quintero v. Kenyon, __ So.3d ___ (Fla. 3d DCA, Nos. 3D09-2564, 3D09-3390, 11/24/2010), 2010 WL 4740305. See discussion in “Withdrawal” section.
Allegedly defamatory statements made by lawyer during potential witness interviews are absolutely privileged, per Fourth DCA. DelMonico v. Traynor, __ So.3d ___, 35 Fla.L.Weekly D1331 (Fla. 4th DCA, No. 4D08-4035, 6/16/2010), 2010 WL 2382570. DelMonico sued Donovan Marine and employee Crespo. Lawyer represented Donovan Marine. In the course of conducting potential witness interviews on behalf of his client Lawyer "published to DelMonico’s ex-spouses and business peers the same allegation [first made by Crespo] that DelMonico hired prostitutes to get business and that DelMonico faced prosecution for prostitution." These statements were made by Lawyer "in his role as an attorney, and were made purportedly for the purpose of defending his client during pending and active litigation." DelMonico sued Lawyer and his firm for defamation and tortious interference. Lawyer’s summary judgment motion was granted, "based upon absolute immunity conferred by the litigation privilege." The Fourth DCA affirmed. "Because the statements complained of were made by [Lawyer] while he was acting as defense counsel in the underlying litigation, and the statements bore 'some relation' to the proceeding, they were absolutely privileged as a matter of law. . . Interviewing a witness in preparation for and connected to pending litigation is absolutely privileged." (Citations omitted.) The court added that Lawyer "should receive the same absolute immunity in questioning potential witnesses before their appearance at deposition or in the courtroom, as if the questioning were during a formalized judicial proceeding. The Florida Supreme Court merely requires that the 'act' have 'some relation to the proceeding.'" (Citation omitted.)
TRUST ACCOUNTS Florida Supreme Court disciplines lawyer who allowed non-lawyer to have signatory authority on escrow account. Florida Bar v. Hines, 39 So.3d 1196 (Fla. 2010). See discussion in “Disciplinary Proceedings” section.
UNAUTHORIZED PRACTICE OF LAW Florida Supreme Court recognizes, but limits, private cause of action for UPL in Florida. Goldberg v. Merrill Lynch Credit Corp., 35 So3d 905 (Fla. 2010). Petitioners filed class action suits seeking to recover document preparation fees charged by Lenders for work allegedly performed by non-lawyer personnel that constituted the unlicensed practice of law ("UPL"). The courts dismissed the action, concluding that only the Florida Supreme Court "has jurisdiction to hear any claim based on the unlicensed practice of law and that Florida does not recognize a private cause of action to recover fees based upon" UPL. The Fourth DCA heard the consolidated appeals. Although the court recognized that R.Reg.Fla.Bar 10-7.1 provides that victims may bring private actions to recover fees and damages based on unlicensed practice, it concluded that the rule was silent as to when such a suit may be brought and held that a supreme court determination on UPL is a prerequisite' to such suits. The Fourth DCA affirmed the dismissals because Respondents had not previously been prosecuted for their conduct by The Florida Bar or disciplined by the Supreme Court. The Florida Supreme Court reviewed the Fourth DCA's decision. The Court noted that it did not address the question of whether the conduct in question constituted UPL, but only "whether the class actions should go forward prior to a determination of the unauthorized practice of law being made by this Court." The Court approved the appellate court's affirmance of the dismissals, although for different reasons. The Court determined that a private cause of action for UPL does lie in Florida. "Petitioners argue that this Court’s rules expressly provide that while a complaint for injunctive relief must be filed by The Florida Bar in this Court, nothing precludes a victim from bringing a private civil action against an unlicensed practitioner to recover fees and damages. We agree. Rule 10-7.1(d)(3) of the Rules Regulating the Florida Bar specifically states that '[n]othing in this section shall preclude an individual from seeking redress through civil proceedings to recover fees or other damages.' Therefore, the petitioners have standing to seek restitution of any claimed damages and are not jurisdictionally barred from initiating a civil action for recovery of any damages caused by the unlicensed practice of law." The complaints in the cases before the Court, however, were properly dismissed for failure to state a cause of action. "To state a cause of action for damages under any legal theory that arises from the unauthorized practice of law, we hold that the pleading must state that this Court has ruled that the specified conduct at issue constitutes the unauthorized practice of law. . . . Stated another way, a claimant must allege as an essential element of any cause of action premised on the unauthorized practice of law that this Court has ruled the activities are the unauthorized practice of law. . . . ." (Citations omitted.) Determinations of UPL by the Court would include rulings on proposed advisory opinions from the Florida Bar Standing Committee on UPL and Court decisions in other actions brought by the Florida Bar. Regarding procedural aspects of private UPL actions, the Court stated: "[I]f the actions complained of have been ruled on by this Court, then a plaintiff may be able to state a cause of action with proper pleading, even though the defendant accused of the unauthorized practice of law has not been subject to a Florida Bar proceeding. However, a plaintiff will not be able to state a cause of action premised on the unauthorized practice of law on a case of first impression (where this Court has not ruled on the actions at issue). In those cases, the pleading may be dismissed without prejudice or the action may be stayed until a determination from this Court pursuant to the advisory opinion procedures of rule 10-9.1 or the complaint and injunctive relief procedures of rules 10-5, 10-6, and 10-7 of the Rules Regulating the Florida Bar." Finally, the Court suspended Rule 10-9.1(c) and directed the Florida Bar to propose rule changes in accordance with its opinion.
Lawyer not licensed in Florida may not collect fee in quantum meruit for legal services provided in Florida in probate and trust matter. Morrison v. West, 30 So.3d 561 (Fla. 4th DCA 2010). See discussion in “Fees” section.
Court makes UPL observation (corporation may not represent itself) and disciplinary referral to Florida Bar in appellate opinion. Opella v. Bayview Loan Servicing, LLC, __ So.3d ___ (Fla. 3d DCA, No. 3D09-2921, 11/24/2010), 2010 WL 4740202. Defendant, an individual, and a corporation in which he had in interest were sued in a foreclosure case. Summary judgment was entered for Plaintiff. Defendant appealed, contending he was not served with process. The Third DCA reversed because the record confirmed that Defendant was neither served with process nor waived service." Defendant represented himself. The Third DCA also reversed the judgment against the corporation although it observed in a footnote: "We note that while [Defendant], who is not an attorney, cannot represent [the corporation], that the judgment is equally void as to it. See Szteinbaum v. Kaes Inversiones y Valores, C.A., 476 So.2d 247, 248 (Fla. 3d DCA 1985) ('It is well recognized that a corporation, unlike a natural person, cannot represent itself and cannot appear in a court of law without an attorney.'). The court criticized the conduct of Plaintiff's counsel, who moved for summary judgment despite the fact that neither Defendant nor the corporation was served with process and apparently filed a "purported 'answer'" that was "nothing more than an undated letter to counsel for one of the litigants." The court stated: "We also direct the clerk to forward a copy of this opinion to the Florida Bar for consideration of conduct in violation of the Rules Regulating the Florida Bar."
WITHDRAWAL Court erred in denying motion to withdraw because Office of Criminal Conflict and Civil Regional Counsel not subject to appointment for indigent defendants in postconviction case. Office of Criminal Conflict and Civil Regional Counsel, Second District v. Smith, 33 So.3d 105 (Fla. 2d DCA 2010). See discussion in “Ineffective Assistance of Counsel and Right to Counsel” section.
Court erred in granting Public Defender's motion to withdraw based on alleged "excessive caseload" conflict. State v. Bowens, 39 So.3d 479 (Fla. 3d DCA 2010). See discussion in “Conflicts of Interest” section.
Court erred in denying continuance where party was unemployed and her counsel withdrew on eve of trial. Quintero v. Kenyon, __ So.3d ___ (Fla. 3d DCA, Nos. 3D09-2564, 3D09-3390, 11/24/2010), 2010 WL 4740305. Quintero appealed from an adverse judgment entered after the court denied her motion for continuance. The Third DCA reversed, concluding that the court had abused its discretion. "Quintero became unemployed and was unable to pay for her attorney’s services. As a result, Quintero’s counsel withdrew from the case on the eve of the scheduled trial. The record does not show that prejudice would have resulted from granting the continuance. Thus, the trial court abused its discretion in denying Quintero’s request." |
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